HomeMy WebLinkAboutord2021-037Whatcom County COUNTY COURTHOUSE
311 Grand Avenue, Ste #105
s;r t Bellingham, WA 98225-4038
(360) 778-5010
Agenda Bill Master Report
File Number: AB2021-296
File ID: AB2021-296 Version: 1 Status: Adopted
File Created: 05/13/2021 Entered by: RSnijder@co.whatcom.wa.us
Department: Planning and File Type: Ordinance Requiring a Public Hearing
Development Services
Department
Assigned to: Council
Agenda Date: 06/29/2021
Primary Contact Email: rsnijder@whatcomcounty.us
TITLE FOR AGENDA ITEM:
Final Action: 06/29/2021
Enactment #: ORD 2021-037
Ordinance adopting amendments to the Purchase of Development Rights Program
SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE:
Ordinance to amend Whatcom County Code 3.25A and PDR Program Guidelines. The proposed
amendments would change the program's name, update the site selection criteria, and improve program
administration.
HISTORY OF LEGISLATIVE FILE
Date: Acting Body:
Action:
Sent To:
06/01/2021 Council INTRODUCED Council Committee of the Whole
Aye: 6 Browne, Buchanan, Byrd, Donovan, Elenbaas, and Frazey
Nay: 0
Absent: 1 Kershner
06/15/2021 Council Committee of the Whole DISCUSSED
06/29/2021 Council ADOPTED
Aye: 5 Browne, Buchanan, Donovan, Frazey, and Kershner
Nay: 2 Byrd, and Elenbaas
Absent: 0
Whatcom County Page 1 Printed on 71112021
Agenda Bill Master Report Continued (AB2021-296)
Attachments: Staff Memo, Proposed Ordinance, Proposed Ordinance Exhibit A, Proposed Ordinance Exhibit B-
Changes, Proposed Ordinance Exhibit B- Clean
Whatcom County Page 2 Printed on 71112021
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PROPOSED BY: Planning
INTRODUCTION DATE:06/01/2021
ORDINANCE NO. 2021-037
ADOPTING AMENDMENTS TO THE
PURCHASE OF DEVELOPMENT RIGHTS PROGRAM
WHEREAS, Whatcom County government recognizes agriculture and forestry as
major contributors to the local economy and a high quality of life for Whatcom County
citizens; and
WHEREAS, The Growth Management Act and the County Comprehensive Plan
support the retention of agricultural and forestry lands of long term commercial significance
and encourage the use of innovative techniques to do so; and
WHEREAS, Ordinance #92-002 enacted a property tax levy known as the
Conservation Futures Tax as authorized by RCW 84.34.230 to provide a funding source to
assist in acquiring "open space land, farm and agricultural land, and timber land, and a
significant Conservation Futures fund balance is available for additional farm land protection
efforts": and
WHEREAS, Ordinance #2002-054 adopted Whatcom County Code Title 3.25A that
authorized the creation of a Purchase of Development Rights (PDR) Program that offers
voluntary farm agreements that include the purchase of agricultural conservation
easements on farmable land within Whatcom County; and
WHEREAS, Ordinance #2002-054 and WCC 3.25A established a Purchase of
Development Rights Oversight Committee to provide review and assistance to the PDR
Program Administrator; and
WHEREAS, The Whatcom County Council adopted the PDR Guidelines Document
through Resolution #2002-040 which includes specific direction for program administration
and conservation easement acquisitions; and
WHEREAS, Ordinance #2018-065 amended Whatcom County Code 3.25A to direct
the PDR Program to also offer voluntary agreements to purchase forestry and ecological
conservations easements on working forestlands and important ecosystem areas within
Whatcom County; and
WHEREAS, The PDR Program messaging was evaluated in 2019 and the Purchase of
Development Rights Oversight Committee recommended changing the program's name to
the Whatcom County Conservation Easement Program, and
WHEREAS, The Purchase of Development Rights Oversight Committee has updated
the program guidelines so as to better identify properties with high conservation value, and
WHEREAS, The Purchase of Development Rights Oversight Committee voted
unanimously on April 23, 2021 to recommend approval of the proposed program name
change, updated guidelines, and updates to Whatcom County Code 3.25A.
Page 1
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NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that
Whatcom County Code 3.25A is hereby amended as outlined in Exhibit A to this ordinance.
BE IT,Aj4$O ,QRDAINED by the Whatcom County Council that the PDR Program
4 �b•
Guideliki#5'afe afsp arhended as outlined in Exhibit B to this ordinance.
�p�DO SEW I� 2?e,Fday of June 2021.
f,!: �
o ��y � s
WHATCOM COUNTY COUNCIL
ATCOM C �NTYWASfflNGTON
Ll
Dana Brown*a -; Ierk 4f-the Council Bar y chanan, Council Chair
APPROVED AS TO FORM:
Approved by email/C Quinn/B Sniider
Civil Deputy Prosecutor
Page 2
WHATCOM COUNTY EXECUTIVE
WHATICOM COUNTY, WA NGTON
Satpal Sidhu, County Executive
Approved ( ) Denied
Date Signed: �� V
Exhibit A
Clean
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Chapter 3.25A
WHATCOM COUNTY CONSERVATION EASEMENT PROGRAM
Sections:
3.25A.010 Short title.
3.25A.020 Purpose.
3.25A.030 Applicability.
3.25A.040 Definitions.
3.25A.050 Designation of program administrator — Powers and duties.
3.25A.060 Conservation easement program oversight committee established — Powers and duties.
3.25A.070 Eligibility criteria.
3.25A.080 Ranking system.
3.25A.090 Conservation easement terms and conditions.
3.25A.100 Application and evaluation procedure.
3.25A.110 Purchase of conservation easements procedure.
3.25A.120 Restriction on buy-back — Extinguishment and exchange of easements.
3.25A.130 Authorization.
3.25A.010 Short title.
This chapter shall be known and may be cited as the "Whatcom County Conservation Easement
Program." For the purpose of this chapter this program shall be known as the "CEP." (Ord. 2018-065
Exh. A; Ord. 2013-015 Exh. A; Ord. 2002-054 § 1).
3.25A.020 Purpose.
To establish a voluntary agricultural, forestry, and ecological conservation easement program for
Whatcom County which will enhance the protection of the county's farmland, forestland, and important
ecosystem areas, enhance the long-term viability of the agricultural and forestry enterprises within the
county and provide public benefit by retaining properties in permanent resource use, in addition to the
protection of ecosystem functions and values. (Ord. 2018-065 Exh. A; Ord. 2002-054 § 1).
3.25A.030 Applicability.
The CEP shall be available for all qualifying lands, as identified in the CEP guidelines, except those lands
under the ownership or control of the United States of America, the state of Washington or an agency or
instrumentality thereof. Any conservation easement acquired pursuant to this chapter shall be
voluntarily offered by the owner. (Ord. 2018-065 Exh. A; Ord. 2002-054 § 1).
3.25A.040 Definitions.
The following definitions shall apply in the interpretation and implementation of this chapter:
"Administrator" is that person placed in a managerial position over the daily operations of the CEP. The
administrator shall serve as a direct liaison to the program.
"Conservation easement" means a nonpossessory interest in one or more parcels by one or more
qualified easement holders under WCC 3.25A.090(B) acquired under RCW 64.04.130, whether the
easement is appurtenant or in gross, voluntarily offered by an owner and acquired by purchase or
donation pursuant to the CEP guidelines, imposing limitations or affirmative obligations for the purpose
of retaining or protecting agricultural, forestry, and ecosystem values of the parcel or parcels.
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"Development rights" means an interest in and the right to use and subdivide land for any and all
residential, commercial and industrial purposes and activities which are not incident to agricultural,
forestry, and/or ecosystem uses.
"Owner" means the owner or owners of the fee simple interest of the parcel.
"Parcel" means a legal lot of record, lawfully recorded in the Whatcom County auditor's office. A
conservation easement may contain one or more parcels; for purposes of this chapter the term "parcel"
shall include all parcels covered by, or proposed to be covered by, the conservation easement.
The "CEP guidelines" shall be adopted by county council and contain the rules and regulations under
which the CEP operates. They include eligibility criteria, site selection criteria, a standard conservation
easement and other procedures and information necessary to ensure fair and consistent administration
of the CEP.
"Qualifying lands" means those properties meeting the eligibility criteria established in the CEP
guidelines for which conservation easements may be purchased pursuant to this chapter. (Ord. 2018-
065 Exh. A; Ord. 2002-054 § 1).
3.25A.050 Designation of program administrator — Powers and duties.
A. Designation. The administrator shall be designated by and report to the director of planning and
development services.
B. Powers and Duties. The administrator or his or her designee shall administer the CEP and shall have
powers and duties to:
1. Establish reasonable and standard procedures and forms consistent with this chapter and the CEP
guidelines for the administration and implementation of the program.
2. Promote the program in cooperation with the CEP oversight committee by providing educational
materials to the public and conducting informational meetings.
3. Investigate and pursue, in conjunction with the county, state, federal and other programs available,
to provide additional public and private resources to fund the program and to maximize private
participation.
4. Evaluate and rank all applications to determine their eligibility and provide assistance to the CEP
oversight committee in ranking properties.
5. Coordinate the preparation of appraisals.
6. Negotiate conservation easement terms and value with the owner or owners.
7. Provide staff support to the county council, the CEP oversight committee, and the county's
authorized appraiser.
95 8. For each conservation easement accepted into the program, establish baseline data, and assure
96 that the terms and conditions of the easement are monitored and complied with by coordinating a
97 monitoring program with each easement holder. (Ord. 2018-065 Exh. A; Ord. 2002-054 § 1).
98
99 3.25A.060 Conservation easement program oversight committee established — Powers and duties.
100 A. Establishment. The CEP oversight committee is hereby established, as follows:
101
102 1. The committee shall consist of seven members appointed by the county executive and confirmed by
103 county council. Each member shall be a resident in and of Whatcom County. The committee shall be
104 comprised of three farmers, one individual representing farm -supporting businesses, one individual
105 possessing real estate experience, one citizen (nonfarmer) from the unincorporated county, and one
106 citizen (nonfarmer) from an incorporated city. No members may have an ownership interest in any
107 of the lands submitted for purchase pursuant to this chapter.
108
109 2. The members of the committee shall serve at the pleasure of the county council. Each term shall be
110 for four years.
111
112 3. The members of the committee shall serve without pay, but the county council may, at its
113 discretion, reimburse members for actual and necessary expenses incurred in the performance of
114 their duties.
115
116 4. The committee shall elect a chairperson and vice -chairperson at its first meeting each calendar year.
117
118 5. The administrator shall be an ex off icio member of the committee.
119
120 B. Purpose. To provide oversight and evaluation for the county CEP. The CEP oversight committee's role
121 is to advise the council in the selection of eligible lands offered for CEP acquisition.
122
123 C. Powers and Duties. The CEP oversight committee shall have the powers and duties to:
124
125 1. Promote the program, in cooperation and under the guidance of the administrator, by providing
126 educational materials to the public and conducting informational meetings.
127
128 2. Review and make recommendations to the administrator and the county council as to which
129 conservation easements should be purchased.
130
131 3. Annually review the CEP guidelines and recommend to the county council any changes needed to
132 maintain the program's consistency with the comprehensive plan, or to improve the administration,
133 implementation and effectiveness of the program.
134
135 4. Provide an annual report of program accomplishments to county council and county executive.
136
137 D. Organization — Meetings. Meetings of the committee shall be open and accessible to the public and
138 shall be subject to the Open Public Meetings Act. The committee shall determine its own meeting
139 schedule but shall meet at least annually. A public comment period will be provided at each meeting.
140 Written records of meetings, decisions, findings and recommendations shall be kept and such records
141 shall be public. The committee shall adopt its own rules and procedures for the conduct of business. The
142 committee shall elect a chairperson from among its members who shall preside at its meetings. A
143 quorum shall consist of four members present and the committee shall operate on a "majority rule"
144 basis.
145
146 E. Technical Advisory Committee. A technical advisory committee, without voting privileges, may be
147 formed to advise the CEP oversight committee on technical/scientific matters as needed.
148 Representatives may include but not be limited to individuals from the following agencies: Cooperative
149 Extension Service, National Resource Conservation Service and Whatcom Conservation District. (Ord.
150 2018-065 Exh. A; Ord. 2002-054 § 1).
151
152 3.25A.070 Eligibility criteria.
153 In order for a parcel to be eligible for a conservation easement, it must meet eligibility criteria as defined
154 in the CEP guidelines. (Ord. 2018-065 Exh. A; Ord. 2011-025 § 1 Exh. A; Ord. 2002-054 § 1).
155 3.25A.080 Ranking system.
156 In order to effectuate the purposes of this chapter, parcels for which conservation easement
157 applications have been received shall be evaluated by utilizing the site selection criteria as contained in
158 the CEP guidelines. The ranking system shall be used to prioritize the acquisition of conservation
159 easements. (Ord. 2018-065 Exh. A; Ord. 2002-054 § 1).
160
161 3.25A.090 Conservation easement terms and conditions.
162 Each conservation easement shall conform with the requirements of this chapter. The deed of easement
163 shall be in a form approved by the county attorney, and shall contain, at a minimum, the provisions
164 incorporated in the standard agricultural, forestry, or ecological conservation easement. Central to the
165 purpose of the CEP are the following:
166
167 A. Allowable Uses. Uses that are compatible with the long-term productivity of the soil for the pursuit of
168 farming or forestry enterprises and/or protection of ecosystem functions and values.
169
170 B. Designation of Easement Holders. The county shall be the easement holder, and, if designated by the
171 county council, one or more other public bodies or qualified organizations, as defined in RCW 64.04.130.
172
173 C. Conservation Easement Duration. A conservation easement acquired under the terms of this chapter
174 shall be in perpetuity. (Ord. 2018-065 Exh. A; Ord. 2002-054 § 1).
175
176 3.25A.100 Application and evaluation procedure.
177 Beginning in the first year following the adoption of the ordinance codified in this chapter and
178 continuing thereafter, the county shall conduct a voluntary property selection process generally as
179 follows and pursuant to the CEP guidelines:
180
181 A. Application. Owners of qualifying lands may apply to the CEP at any time.. Application materials will
182 be provided by the administrator and will include, at a minimum, a standard application form and
183 information about the CEP. Applications shall be submitted to the administrator and reviewed for
184 completeness.
185
186 B. Evaluation. The administrator shall review and determine eligibility and priority classification of
187 applications. The applications ranked by the administrator shall be forwarded to the CEP oversight
188 committee. The committee shall review the applications and establish parcels for easement purchase
189 based on selection criteria contained in CEP guidelines. The committee shall then forward the parcels to
190 the county council which shall review and prioritize parcels on which it will seek to purchase
191 conservation easements.
192
193 C. Appraisal. Based on anticipated funding, the administrator shall estimate the number of appraisals
194 that can be completed during the fiscal year. The committee shall select applications to be appraised in
195 accordance with CEP guidelines.
196
197 D. Requirements and Deadlines May Be Waived. Any requirement or deadline set forth in this chapter or
198 the CEP guidelines may be waived by the county council if, for good cause, it is shown that urgent
199 circumstances exist that warrant consideration of an application. Under such circumstances the council
200 may purchase a conservation easement at any time and through any process it deems necessary.
201
202 E. Reapplication. An owner of a parcel not selected by the county council for purchase of a conservation
203 easement may reapply in the future. (Ord. 2018-065 Exh. A; Ord. 2013-015 Exh. A; Ord. 2002-054 § 1).
204
205 3.25A.110 Purchase of conservation easements procedure.
206 Each application for a conservation easement shall be processed and evaluated pursuant to the
207 requirements as contained in the CEP guidelines which will include at a minimum the following:
208
209 A. Conservation Easement Sale. The administrator shall arrange for an appraisal of the value of placing a
210 conservation easement on the property, to be completed by an independent county -authorized
211 appraiser. The value of the conservation easement will include the value from eliminating select
212 development rights and imposing certain use restrictions in perpetuity in order to protect the
213 agricultural, forestry, and ecosystem values of the property. The CEP oversight committee and
214 administrator shall review the results of the appraisal. The administrator shall, in writing, invite the
215 property owner(s) to grant a conservation easement to the county for the amount of the appraised
216 value of such conservation easement, subject to the terms and conditions of a proposed deed of
217 easement. Property owners desiring to grant a conservation easement shall submit a written acceptance
218 of the offer. Nothing in this chapter shall compel an owner to submit an acceptance of the offer.
219
220 B. Acceptance. Requests to purchase conservation easements shall be made to the county council for
221 acceptance.
222
223 C. Conservation Easement Established. A conservation easement shall be established when the owner
224 and an authorized representative of the holder of the easement have each signed the deed of
225 easement. The deed shall be recorded in the Whatcom County auditor's office.
226
227 E. Costs. If the county council approves the purchase of a conservation easement, the county may pay all
228 other costs including environmental site assessments, surveys, recording costs, if any, and other charges
229 associated with closing. However, the county shall not pay expenses or fees incurred by the property
230 owner for independent appraisals or legal, financial, or other advice, or expenses or fees in connection
231 with the release and subordination of liens to the easement purchased by the county. (Ord. 2018-065
232 Exh. A; Ord. 2002-054 § 1).
233
234 3.25A.120 Restriction on buy-back — Extinguishment and exchange of easements.
235 If circumstances arise that render the purpose of this easement impossible to accomplish, the easement
236 can be extinguished only by judicial proceedings. In the event of such an extinguishment or the taking of
237 the property by the exercise of the power of eminent domain, grantors shall pay to Whatcom County an
238 amount determined by subtracting the fair market value of the property subject to this easement from
239 the fair market value of the property unrestricted by this easement, at the time of extinguishment or
240 condemnation, if Whatcom County is not compensated for its property interests at the time of the
241 extinguishment or condemnation. Other details regarding restrictions on buy-back or extinguishment as
242 may be deemed necessary shall be contained in the CEP guidelines, and/or the easement deed. (Ord.
243 2018-065 Exh. A; Ord. 2013-015 Exh. A; Ord. 2002-054 § 1).
244
245 3.25A.130 Authorization.
246 A. The county is hereby authorized to acquire conservation easements from lands described and
247 prioritized in WCC 3.25A.080. Such acquisition may be accomplished by purchase, gift, grant, bequest,
248 devise, covenant or contract but only at a price which is equal to or less than the appraised value
249 determined as provided in this chapter and the CEP guidelines.
250
251 B. If the owner so elects, the county is authorized to pay the purchase price in a lump -sum single
252 payment at time of closing, or to enter into contract for installment payments against the purchase
253 price. When installment purchases are made, the county is authorized to pay interest on the declining
254 unpaid principal balance at a legal rate of interest consistent with prevailing market conditions at the
255 time of execution of the installment contract and adjusted for the tax-exempt status of such interest.
256
257
Exhibit B
Clean
Whatcom County
Conservation Easement
Program Guidelines
Revised version adopted April 9, 2013,
Second revision adopted November 20, 2018
Thud revision adopted [DATE]
[this page is intentionally blank]
TABLE OF CONTENTS
I. INTRODUCTION.................................................................................................................. 1
II.CEP OBJECTIVE AND PRINCIPLES................................................................................ 2
III. ELIGIBILITY CRITERIA.................................................................................................. 4
IV. SITE SELECTION CRITERIA........................................................................................... 5
V.OVERVIFW OF CEII PROCEDURES................................................................................ 15
VI. CONSERVATION EASEMENTS...................................................................................... 18
VII. OPERATIONAL PROCEDURES FOR. ACQUIRING CONSERVATION
EASEMENTS..................................................................................................................... 20
VIII. CONSERVATION FUTURES FUND............................................................................. 25
APPENDICES
A. AGRICULTURAL PRIORITY AREAS
B. FORESTRY PRIORITY AREAS
C. ECOLOGICAL PRIORITY AREAS
D. MAJOR ROADS
E. SOILS LIST
F. MODEL CONSERVATION EASEMENT
These Program Guidelines are authorized under WCC Title 3.25A and serve as rules and
procedures for administering the Whatcom County Conservation Easement Program
(CEP).
The Guidelines serve two functions:
A. To provide an overview of the land preservation process for the property owner.
Specifically, this information can be found in Section V.
B. To establish the rules and operational procedures that the CEP Oversight Committee and
the Administrator must follow when operating a Conservation Easement Program.
Revised version adopted, IDATE--] Paac 1
. CEP O J EC: rIVE AND PRINCIPLE
Responding to the loss of County farmland, the Whatcom County Executive initiated the
development of a Purchase of Development Rights (PDR) program in September of 2001. A
PDR Advisory Committee comprised of farmers, citizens and conservation organizations was
formed and tasked with assisting County staff in the development of a proposal for County
Council consideration. The Purchase of Development Rights Program was enacted through
Ordinance 2002-054 in September of 2002.
Since that time, Whatcom County continues to experience a rapid development rate. In Response
to the loss of forest resource lands and areas of ecological importance, the program expanded in
2018 to protect working forestlands and important ecosystem areas. This expansion was enacted
through Ordinance 2018-065. In order to better reflect the program's purpose, the program
changed names in 2021 to the Whatcom County Conservation Easement Program. This change
was enacted through Ordinance 2021-XXX. These program guidelines have been updated
accordingly.
A. Objective
The primary objective of the Whatcom County Conservation Easement Program (CEP),
in conjunction with other tools, is the protection of farmland. The secondary objective of
the CEP is the protection of forestland and areas of ecological importance. The Whatcom
County Conservation Easement Program will help to sustain the farming and forestry
enterprises as well as support healthy ecosystem function throughout Whatcom County.
B. Principles
The CEP provides a strategic tool to protect County farmland, forestland, and areas of
ecological importance.
l . Preserve the County`s Agricultural lands, Forestlands and Areas of
Ecological Importance
Encourage the protection of a critical mass of agricultural and forestry land to
sustain the farm -related and forestry -related businesses and activities that are
necessary to support the agricultural and forestry industries in Whatcom County.
Additionally, the Program will encourage the protection of areas of ecological
importance necessary to sustain ecosystem health and function.
The primary CEP emphasis will be:
a. Reduce conversion of land to non-agricultural uses within the Agricultural
District;
b. Provide a buffer to discourage encroachment into the Agricultural District;
C. Consolidate and protect areas of agricultural land; and
d. Protect agricultural lands located outside the Agricultural District that are
under increased pressure of development.
The secondary CEP emphases will be:
a. Reduce conversion of land to non -forestry uses within the Forestry
Revised version adopted, [DATL] Page 2
Districts;
b. Provide a buffer to encroaclmzent of the Forestry Districts;
C. Consolidate and protect areas of forestry land;
d. Address commercially significant forestry lands outside the Forestry
Districts that are under pressure of development.
e. Protect areas of ecological importance and support and enhance ecosystem
functions within agricultural and forestry lands;
h. Improve and support habitat connectivity and protection of critical habitat
corridors.
2. Offer Effective Program Design
Maintain a voluntary tool for the preservation of productive agricultural and
forestry lands, as well as areas of ecological importance in the County that will:
a. Provide farmers and foresters with the market based economic value for
agricultural and forestry land without selling the land;
b. Provide property owners with the market based economic value for areas
of ecological importance without selling the land.
C. Support and promote ongoing agricultural and forestry activities by
offering an attractive option for farmers, foresters, and landowners;
d. Support and promote ecosystem function by offering an attractive option
for landowners; and
e. Provide for ongoing monitoring and enforcement.
3. Leverage Program Impact and Efficiency
Enhance and support a coordinated approach to the preservation of the agricultural
and forestry lands, as well as areas of ecological importance that will:
a. Create community support for agricultural and forestry preservation
initiatives;
b. Create community support for the protection of areas of ecological
importance;
C. Complement and foster other County programs and policies to preserve
farming and agricultural lands;
d. Complement and foster other County programs and policies to preserve
forestry and forestry lands;
e. Complement and foster other County programs and policies to enhance
ecosystem function and protect areas of ecological importance; and
C. Leverage other public and private funding sources and provide or increase
property owner incentives and program effectiveness.
Revised version adopted, I DATE] Pagc 3
M. IEIGIBILYry CRITERIA
A. Priority Consideration
Areas around the county have been identified to receive priority consideration for CEP
participation.
Agricultural priority areas (Appendix A) include a combination of the Ten Rural Study
Areas, Watershed Improvement District areas, lands within the Agriculture Zone, and
additional areas identified in the 2019 Agricultural Landscape Analysis. The 2019
Agricultural Landscape Analysis also highlights active crop land and contiguous blocks
of agricultural lands as identified by the Washington State Department of Agriculture as
well as suitable agricultural soils as identified by USDA Natural Resource Conservation
Service. Preservation of these areas protect designated agricultural lands and can
establish a perimeter of PDR farmlands to protect against development encroachment
into large blocks of agricultural lands. These lands, due to their soils, land use, and
proximity to core agricultural areas, are deemed priority farmlands for program
participation due to their vulnerability for conversion to non- agricultural uses.
Forestry priority areas (Appendix B) include lands located within the Rural Forestry zone
and areas designated by the Washington State Department of Natural Resources as being
priority for protection from conversion under Washington's Forest Action Plan. The
2019 Forestry Landscape Analysis did not identify additional priority areas.
Ecological priority areas (Appendix C) include lands containing a mapped Habitat
Conservation Area or within 165' of habitat conservation feature, such as fish
bearing streams, areas identified under the Washington State Department of Fish and
Wildlife's Priority Habitats and Species, and the Chuckanut Wildlife Corridor.
Ecological priority areas also include mapped FEMA Floodplain and Flood Hazard
areas, the 300' buffer of the Historic Meander Zone, and additional areas identified
in the 2019 Ecological Landscape Analysis. The 2019 Ecological Landscape
Analysis also highlights watershed protection recommendations and freshwater
habitat as identified by the Washington Department of Ecology, among other areas.
B. CEP Eligibility
Two factors will be important in determining eligibility:
1. Availability of funding to expand the program and
2. Advancement of CEP objectives. Priority lands will continue to receive
preference over other lands through weighted selection criteria.
All applicant properties for CEP participation must be:
1. Completely or partially within an Agriculture, Rural, Rural Residential, or
Rural Forestry zoning designations. Properties located in Urban Growth
Areas are ineligible to participate in the program, unless coordination with
cities is a component of an application.
2. At least 1 acre in size.
3. Removing all development rights if the parcel is smaller than 10 acres.
Revised version adopted, [DATE] Page 4
IV. SITE SELECTION N CRITERIA
All valid applications will be reviewed to determine if the acquisition of development rights will
promote the CEP's goals and priorities. Selection criteria have been developed to guide, but not
control, the review and assessment of eligible properties during selection.
Valid and accepted offers on eligible properties of greater points shall be considered for purchase
with available funds before properties receiving lower scores. The criteria, which will be used to
evaluate the applications, are outlined below.
Rating instructions: An application will be scored under one of'three types of conservation
easement selection criteria: 1) Agricultural, 2) Forestry, or 3) Ecological. The agricultural
selection criteria allow.for a score of up to I10, while the forestry and ecological selection
criteria allow for a score of up to 100. This ensures that agricultural protection is the primary
emphasis of the program. There are five to six. criteria sections and each criteria section is rated
and assigned a point value based on a 100 point scale. Then each section is assigned a weight
factor. The six agricultural weight factors add up to 1.1 and the five forestry and ecological
weight factors each add up to 1.0. Whentotal point values for a section are multiplied by the
weight factor, a score will be reached for that section. The total of the section scores result in the
final applicant score. Staffperforms the ranking, with review and adjustment by the CEP
Oversight Committee.
A. Agricultural Site Selection Criteria
1. General Site Evaluation
a. Total size of parcel(s) (nominal acres)
1. 0 — 9.99........................................................................0 points
2. 10 — 19.99..................................................................15 points
3. 20 — 49.99...................................................................30 points
4. 50 — 79.99...................................................................70 points
5.>80........................................................................ 100 points
b. Adjacent land is conserved by easement or other means (Whatcom Land Trust,
NRCS CREP Program, or owned by a municipality or NGO)
1. > 1 mile........................................................................0 points
2. 0.50 to 0.99 mile...........................................................25 points
3. 0.25 to 0.49 mile...........................................................50 points
4. < 0.25 mile.................................................................75 points
5. Adjacent..................................................................100 points
c. Number of legal lots of record
1.
0-2...........................................................................20
points
2.3
..............................................................................40
points
3.4
..............................................................................60
points
4.
5..............................................................................80
points
5.
> 6...........................................................................1
00
points
Revised version adopted, IDATE I Page 5
Removal of all unused development rights?
1. Unused development rights remaining...................................0 points
2. All removed...............................................................100 points
e. Number of priority areas parcel is located in
1.0 ..............................................................................0 points
2. 1.............................................................................50 points
3. 2-3.........................................................................100 points
Once a point vcdue for the section is determined, it is multiplied by a weight, factor to
indicate the importance (weighted factor,for General Site Evaluation section has been
0.2, but is subject to ongoing review by the Committee).
2. Development Pressure
a. Number of existing unused development rights offered under current zoning
1. 1-2......................................................................... 20 points
2. 3............................................................................ 40 points
3.4 ............................................................................ 60 points
4.5 ............................................................................ 80 points
5.>6........................................................................ 100 points
b. Proximity to major roads or road intersections
(For pznl)oses of this evaluation, "ingjor roads" means roads with a daily traffic
volume of 3,000 or more trips. A list of roads currently meeting this definition is
included as Appendix: D to this report.)
1. Property is within 2,500 feet of a major road ........................ 25 points
2. Property fronts on a major road ........................................ 50 points
3. Property is within 1,500 feet of the intersection
of two major roads ................................................. 75 points
4. Property is at an intersection of major roads ....................... 100 points
c. Threat of Conversion/Parcelization
Total Number of Parcels in surrounding '/ mile
1. < 20 parcels............................................................... 50 points
2. 20 — 50 parcels.......................................................... 100 points
3. 51 — 100 parcels.......................................................... 50 points
4. > 100 parcels................................................................ 0 points
Once a point value for the section is determined, it is multiplied by a weight factor to
indicate the importance (weighted,factor for Development Pressure section has been 0.2,
but is subject to ongoing review by the Committee).
Revised version adopted, [DATE] Page 6
3. Soil Evaluation
Productive farming, forestry and associated activities depend on soil capability (the suitability of
soils for most types of field crops and/or timber production). Therefore, emphasis should be
placed on the property's soil characteristics. The scoring system uses the NRCS Prime Farmland
classifications, LESA classifications and APO soils classifications, including classification of
soils of statewide importance as well as consideration given to site index score for forest soils.
Highest points are assigned to better agricultural soils and lower points to poorer agricultural
soils. Forest soils also receive additional points. Points are assigned based on the productivity
and/or characteristics of the soil (profile, texture, slope, other). A soils chart is included as
Appendix D. If a soil has a site index rating and a prime soil rating, the rating with the highest
number of points will be applied.
Below is a table detailing the soil point system:
1PCi or
S+�Is of
i� S %Rai g
vu CPU
1�an APO
Pr 2
t ie� tcTe
S....
�l iti'#e 1
�nc�
�Ill�tl3'#�iCi' a
I
100
90
0
0
2 ". " '
95
85
0
0
90
80
0
0
85
75
0
0
N Rafitng .
80
70
50
0
777
I
0
0
0
60
0
0
0
50
3
0
0
0
40
0
0
0
30
5_
0
0
0
20
Farm applications receive points for this section proportional to the percentage of each soil type
that exists on the property. An example of how this would work follows: A farm under review is
40 acres, of which 29.79 acres (about 75%) is soil 179-Whatcom Silt Loam 4-9% slopes, which
is classified as LESA 4, APO Prime 1; and 10.21 acres (about 25%) is soil 180-Whatcom Silt
Loam 9-15% slopes, which is not classified as APO or Prime, but is a soil of Statewide
Importance. This farm would score a total of 76.07 points for this Section, as shown:
A
B
C
D
P
F
G
H
I
J
K
Soil #
Area y(in
acres)
`% (B/Total
area);
APO
Soil
Prime
1- 6?
LESA,
Rating
Prime
Rating
Statewide
Soil
Site
Index
Points
score
(J*C)
179
29.79
74.48%
Y
Y
4
1
0
2
85
63.30
180
10.21
1 25.53%
N
N
0
0
yes
2
50
12.76
Total area
40
76.07
077ce a point value for the seCti077 is determinect, it is multipliecl by a weight factor to
indicate the importance (weighted factor for Soil Evaluation section has been 0.35, but
is subject to ongoing review by the Committee).
Revised version Adopted, [DATE] Paige 7
4. Agriculture Evaluation
a. Percent of property actively farmed
1. 0-25%..................................................................... 25 points
2. 26-50%................................................................... 50points
3. 51-75%................................................................... 75points
4. >75%..................................................................... 100 points
b. Legal water availability documentation
1. No Water documentation or legal water access ........................ 0 points
2. Water Claim.............................................................. 50 points
3. Certified Water Right/Access to public waterr....................... 100 points
c. Parcel is located in Agriculture District and is less than 40 acres or parcel is located in a
Rural Study Area?
1. No............................................................................. 0 points
2. Yes......................................................................... 100 points
Once a point value for the sectionn is determined, it is multiplied by a weight factor° to
indicate the importance (weighted factor for Agriculture Evaluation section has been
0.15, but is subject to ongoing review by the Committee).
5. Special Considerations
a. Site contains heritage/historical significance, i.e. Heritage Barn Registry
1. No............................................................................. 0 points
2. Yes......................................................................... 100 points
b. The Washington State Department of Ecology Watershed Characterization report
has identified recommendations for addressing water flow processes within sub -
watersheds. Protection (Overall importance to Water flow processes):
1. Conservation (no change) ................................................ 25 points
2. Protection/Restoration................................................... 50 points
3. Protection.................................................................. 75points
4. Highest protection...................................................... 100 points
c. Is property owner willing to restore ecosystem processes beyond the minimum
required practices?
1. Maybe/No................................................................... 0 points
2. Yes........................................................................ 100 points
d. Site contains conservation values (viewsheds, wetlands, notable wildlife habitat, other
critical areas)
1. No........................................................................... 0 points
2. Yes........................................................................ 100 points
Once a point value, for the section is determined, it is multiplied by a weight factor to
indicate the importance (weighted factor for Special Considerations section has been
0.10, but is subject to ongoing review by the Committee).
Revised version adopted, [DATE] Pagc 8
6. Matching Funds or Bargain Sale
1. 0% secured.................................................................................... 0 points
2. 25% secured.............................................................. 25points
3. 50% secured.............................................................. 50points
4. 75% secured.............................................................. 75points
5. 100% secured........................................................... 100 points
Once a point value for the section is determined, it is multiplied by a weight.factor to
indicate the importance (weighted factor for Matching Funds or Bargain Sale section
has been 0.10, but is subject to ongoing review by the Committee).
B. Forestry Site Selection Criteria
1. General Site Evaluation
a. Total size of parcel(s) (nominal acres)
1. 0 — 9.99........................................................................0 points
2. 10 — 19.99..................................................................15 points
3. 20 — 49.99...................................................................30 points
4. 50 — 79.99...................................................................70 points
5.>80........................................................................ 100 points
b. Adjacent land is conserved by easement or other means (Whatcom Land Trust,
NRCS CREP Program, or owned by a municipality or NGO)
1. > 1 mile........................................................................0 points
2. 0.50 to 0.99 mile...........................................................25 points
3. 0.25 to 0.49 mile...........................................................50 points
4. < 0.25 mile..................................................................75 points
5. Adjacent..................................................................100 points
c. Number of legal lots of record
1. 0-2...........................................................................20 points
2. 3..............................................................................40 points
3.4 ..............................................................................60 points
4. 5.................................................................I............80 points
5.>6...........................................................................100 points
d. Removal of all unused development rights?
1. Unused development rights remaining...................................0 points
2. All removed...............................................................100 points
e. Number of priority areas parcel is located in
1.0 ..............................................................................0 points
2. 1.............................................................................50 points
3. 2-3.........................................................................100 points
Once a point value for the section is determined, it is multiplied by a weight factor to
indicate the importance (weighted factor for General Site Evaluationn section has been
0.2, but is subject to ongoing review by the Committee).
Revised version adopted, I DATE l Page 9
2. Development Pressure
a. Number of existing unused development rights offered under current zoning
1. 1-2......................................................................... 20 points
2. 3............................................................................ 40 points
3.4 ............................................................................ 60 points
4. 5............................................................................ 80 points
5.>6........................................................................ 100 points
b. Proximity to major roads or road intersections
(For purposes of this evaluation, "major road's "means roads with a daily traffic
volume of 3,000 or more trips. A list of roads currently meeting this definition is
included as Appendix D to this report.)
5. Property is within 2,500 feet of a major road ........................ 25 points
6. Property fronts on a major road ........................................ 50 points
7. Property is within 1,500 feet of the intersection
of two major roads ................................................. 75 points
8. Property is at an intersection of major roads ....................... 100 points
c. Threat of Conversion/Parcelization
Total Number of Parcels in surrounding '/ mile
1. < 20 parcels............................................................... 50 points
2. 20 - 50 parcels.......................................................... 100 points
3. 51 - 100 parcels.......................................................... 50 points
4. > 100 parcels................................................................ 0 points
Once a point value for the section is determined, it is nudtiplied by a weight factor to
indicate the importance (weighted factor for Development Pressure section has been. 0. 2,
but is subject to ongoing review by the Committee).
3. Forestry Evaluation
a. Site index soil score, spatially weighted
1. 5............................................................................ 20 points
2.4 ............................................................................ 40 points
3. 3............................................................................ 60 points
4.2 ............................................................................... 80 points
5.1........................................................................... 100 points
b. Property is identified as priority forestland based on State Forest Action Plan?
1. No............................................................................ 0 points
2. Yes......................................................................... 100 points
c. Parcel is located in Rural Forestry District or is enrolled as Designated Forest Land?
1. No............................................................................. 0 points
2. Yes......................................................................... 100 points
d. Proximity to existing and contiguous blocks of forestland
1. >0.5 mile........................................................................ 0 points
2. 0.26 - 0.5 mile................................................................ 50 points
3. 0.11 - 0.25 mile............................................................. 75 points
Revised version Adopted, [DATE] Pane 10
4. <0.1 mile.................................................................... 100 points
e. Property is located at access to other working forestland?
1. No............................................................................. 0 points
2. Yes......................................................................... 100 points
Once a point value for the section is determined., it is multiplied by a weight factor to
indicate the importance (weighted,factor.for Forestry Evaluation section has been
0.4, but is subject to ongoing review by the Conunittee).
4. Special Considerations
a. Site contains existing or proposed trails
3. No............................................................................. 0 points
4. Yes......................................................................... 100 points
b. The Washington State Department of Ecology Watershed Characterization report
has identified recommendations for addressing water flow processes within sub -
watersheds. Protection (Overall importance to Water flow processes):
5. Conservation (no change) ................................................ 25 points
6. Protection/Restoration................................................... 50 points
7. Protection.................................................................. 75points
8. Highest protection...................................................... 100 points
c. Is property owner willing to implement forest management practices beyond the
minimum required practices?
1. Maybe/No................................................................... 0 points
2. Yes........................................................................ 100 points
d. Site contains conservation values (viewsheds, wetlands, notable wildlife habitat, other
critical areas)
1. No............................................................................0 points
2. Yes...................................................................... 100 points
Once a point value for the sectionn is determined, it is multiplied by a weight.factor to
indicate the importance (weighted factor for Special Considerations section has been
0.10, but is subject to ongoing review by the Committee).
5. Matching Funds or Bargain Sale
1. 0% secured.................................................................................... 0 points
2. 25% secured.............................................................. 25points
3. 50% secured.............................................................. 50points
4. 75% secured.............................................................. 75points
5. 100% secured........................................................... 100 points
Once a point value, for the section is determined, it is multiplied by a weight factor to
indicate the importance (weighted, factor for Matching Funds or Bargain. Sale section
has been 0.10, but is subject to ongoing review by the Committee).
Revised version adopted, [DA"rEi Page 11
C. Ecological Site Selection Criteria
1. General Site Evaluation
a. Total size of parcel(s) (nominal acres)
1. 0 — 9.99........................................................................0 points
2. 10 — 19.99..................................................................15 points
3. 20 — 49.99...................................................................30 points
4. 50 — 79.99...................................................................70 points
5.>80........................................................................ 100 points
b. Adjacent land is conserved by easement or other means (Whatcom Land Trust,
NRCS CREP Program, or owned by a municipality or NGO)
1. >1 mile........................................................................0 points
2. 0.50 to 0.99 mile...........................................................25 points
3. 0.25 to 0.49 mile...........................................................50 points
4. < 0.25 mile..................................................................75 points
5. Adjacent..................................................................100 points
c. Number of legal lots of record
1. 0-2...........................................................................20 points
2. 3..............................................................................40 points
3. 4..............................................................................60 points
4. 5..............................................................................80 points
5.>6...........................................................................100 points
d. Removal of all unused development rights?
1. Unused development rights remaining...................................0 points
2. All removed...............................................................100 points
e. Number of priority areas parcel is located in
1. 0..............................................................................0 points
2. 1.............................................................................50 points
3. 2-3.........................................................................100 points
Once a point value for the section is determined, it is multiplied by a weight factor- to
indicate the importance (weighted,factor for General Site Evaluation section has been
0.2, but is subject to ongoing review by the Cotntnittee).
2. Development Pressure
a. Number of existing unused development rights offered under current zoning
1. 1-2......................................................................... 20 points
2.3 ............................................................................ 40 points
3.4 ............................................................................ 60 points
4. 5............................................................................ 80 points
5.>6....................................................... I ................ 100 points
b. Proximity to major roads or road intersections
(For purposes of this evaluation, "major roads " means road rnith a daily traffic
Revised version adopted, 1DATEPagc 12
volume of 3,000 or more trips. A list of roads currently n7eeting this definition is
included as Appendix D to this report.)
1. Property is within 2,500 feet of a major road ........................ 25 points
2. Property fronts on a major road ........................................ 50 points
3. Property is within 1,500 feet of the intersection
of two major roads ................................................. 75 points
4. Property is at an intersection of major roads ....................... 100 points
c. Threat of Conversion/Parcelization
Total Number of Parcels in surrounding'/4 mile
1. < 20 parcels............................................................... 50 points
2. 20 - 50 parcels.......................................................... 100 points
3. 51 - 100 parcels.......................................................... 50 points
4. > 100 parcels................................................................ 0 points
Once a point value for the section is detern ined, it is nuthiplied by a weight factor to
indicate the importance (weighted factor for Development Pressure section has heen 0.2,
but is subject to ongoing review by the Connnittee).
3. Ecological Evaluation
The 2019 Landscape Analysis for the program is used to answer Questions 3.a through 3.c.
a. Protect water quality and quantity landscape analysis score, spatially weighted
1.0 .............................................................................. 0 points
2. 0.01 - 0.99................................................................... 20 points
3. 1 - 1.99.................................................................... 40points
4. 2 - 2.99..................................................................... 60 points
5. 3 - 3.99..................................................................... 80 points
6. 4 - 5........................................................................ 100 points
b. Ecologically important aquatic areas landscape analysis score, spatially weighted
1.0 ......................................................................I....... 0 points
2. 0.01 - 0.99................................................................... 20 points
3. 1 - 1.99.................................................................... 40points
4. 2 - 2.99..................................................................... 60 points
5. 3 - 3.99..................................................................... 80 points
6. 4 - 5........................................................................ 100 points
c. Ecologically important terrestrial areas landscape analysis score, spatially weighted
1.0 .............................................................................. 0 points
2. 0.01 - 0.99................................................................... 20 points
3. 1 - 1.99.................................................................... 40points
4. 2 - 2.99..................................................................... 60 points
5. 3 - 3.99..................................................................... 80 points
6. 4 - 5........................................................................ 100 points
d. Additional ecologically important areas not included in landscape analysis score?
1. No............................................................................. 0 points
2. Yes......................................................................... 100 points
Revised version adopted, (DATE] Page 13
Once a point value,for the section is determined it is muultiplied by a weight factor to
indicate the importance (weighted factor for Ecological Evaluation section has been.
0.4, but is subject to ongoing review by the Committee).
4. Special Considerations
a. Site contains existing or proposed trails
1. No............................................................................. 0 points
2. Yes......................................................................... 100 points
The Washington State Department of Ecology Watershed Characterization report
has identified recommendations for addressing water flow processes within sub -
watersheds. Protection (Overall importance to Water flow processes):
1. Conservation (no change) ................................................ 25 points
2. Protection/Restoration................................................... 50 points
3. Protection.................................................................. 75points
4. Highest protection...................................................... 100 points
c. Is property owner willing to restore ecosystem processes beyond the minimum
required practices?
2. Maybe/No................................................................... 0 points
2. Yes........................................................................ 100 points
Once a point value for the section is determined, it is multiplied by a weight factor to
indicate the importance (weighted factor for Special Considerations section has been
0.10, but is subject to ongoing review by the Committee).
5. Matching Funds or Bargain Sale
6. 0% secured.................................................................................... 0 points
7. 25% secured.............................................................. 25points
8. 50% secured.............................................................. 50points
9. 75% secured.............................................................. 75points
10.............................................................................................100%
secured........................................................... 100 points
Once a point value.for the section is determined, it is multiplied by a weight,factor to
indicate the importance (weighted, factor for Matching Funds or Bargain Sale section
has been 0.10, but is subject to ongoing review by the Committee).
Final Score
The points for each section are added up and multiplied by a weight factor, which indicates the
importance that is placed on a particular characteristic. The weighted scores are then added to
provide an overall score (0-110). The higher the score, the more closely the property meets the
goals of the program and hence is a higher priority for purchase and preservation. Properties
which score less than 40 (forty) points will not be recommended for program participation. The
CEP Oversight Committee retains the ability to add or subtract up to 5 points on any application.
A write-up of committee opinion will be included in all council proceedings.
Revised version adopted, DATE] Page 14
V. OVERVIEW OF CEP PROCEDURES
A. Outreach and Publicity
Step 1: The County shall develop and distribute outreach materials for the CEP. Outreach
shall include the properties eligible to participate, the application process and
applicable timeframes and extensions.
The Administrator may identify each property with potential development rights
within priority consideration areas and provide written notification to the property
owners.
B. Application and Ranking
Step 2: Voluntary pre -application screening. Interested property owners may meet with
the County CEP Administrator (Administrator) to review their eligibility and
special circumstances, if any.
Step 3: Application. An owner of land eligible for CEP participation submits an
application for County acquisition of property or development rights. The
application must be submitted on the form provided by the County.
Step 4: Lot of Record/Density Determination. An owner- of land eligible for CEP
participation submits a Lot of Record application. This application determines
legal status of lots being considered and determines that number of development
rights remaining on said lots. The Lot of Record determination must be completed
before an appraisal can occur.
Step 5: The Administrator reviews each application for completeness, determines if the
subject property meets minimum eligibility criteria and assigns a preliminary
score based upon the CEP site selection criteria.
Step 6: The CEP Oversight Committee reviews CEP applications and recommends
proposed development rights acquisition utilizing the selection criteria.
Recommendations for development right acquisition are prepared and forwarded
to County Council to approve, deny, or recommend modification.
Step 7: The Administrator estimates the number of appraisals that can be initiated based
on available funds and chooses based on the top ranked parcels from the County
Council's list of parcels and the timeline of projects with secured grant funding.
C. Title
Step 9: The Administrator initiates a title search. Closing is conditioned on the resolution
of all unapproved title exceptions, within the County's sole discretion, which may
require the receipt of subordination agreements or payoff letter.
Revised version adopted, I DATE I Page 15
D. Pricing Estimate and Appraisal
Step 10: The Administrator or designee provides preliminary estimate of value, and notifies
the property owner of an estimated range of value within which the appraisal will
likely fall. The Administrator or designee sends the applicant a letter of intent,
including range of expected value. The letter calls for the signature of property
owner(s).
Step 10: The Administrator or designee proceeds to verify assumptions through official
county processes, such as a formal Lot of Record and density determination, and
conduct other due diligence as necessary (such as water rights research and Title
research and clearing).
Step 11: Unless Council and the Executive specifically authorize an alternate approach to
determine value, the Administrator commissions a full appraisal by a County
authorized appraiser to appraise the value of placing a conservation easement on
the land that removes development rights. The consevation easement value is the
difference between the market value of full ownership of the land, and the
agricultural or forestry value.
Step 12: The appraiser submits the completed appraisal (or the alternate determination of
value is conducted and submitted) to the Administrator and the Oversight
Committee for their review.
Step 13: The Administrator or designee meets with the property owner to review the
appraisal (or alternate determination of value), state the offer, review the
conservation easement provisions, agreement terms and conditions, and to answer
the property owner's questions.
Step 14: If the property owner believes that the land has not been adequately appraised or
valued, the owner may, within the time allowed in the schedule, commission an
appraisal at the owner's expense.
E. Offer to Purchase Easement and Agreement
Step 15: A written offer to purchase development rights based on appraised or determined
value is made to the property owner following budget authorization by the County
Council, and approval by the County Executive.
Step 16: Within 30 days, the property owner accepts, rejects or makes a counter offer.
Counter offers will be reviewed and evaluated by the Oversight Committee and
the County's authorized appraiser.
Step 17: Property owners desiring to sell their development rights sign a Purchase and Sale
Agreement.
F. Adjacent Property Owner Notification
Step 18: Neighboring property owners are notified that adjacent land is in the process of
Revised version adopted, (DATE] 1?aac 16
being preserved.
G. Approval
Step 19: Review materials are presented to the County Executive for review and approval,
rejection, or recommendation for modification.
Step 20: Review materials are sent to other participating entities for partially or wholly
funded conservation easements several days prior to any deadline.
I. Settlement
Step 21: Settlement will occur following County Executive approval of transaction terms
and is contingent upon a title search and any other evidence, such as a land
survey, that may be necessary to establish clear title.
Step 22: Payment will be in full at time of settlement unless the County and property
owner agree to an installment sale.
Step 23: Checks are requested from the Finance Manager and settlement is scheduled
within a week or two of approval. Federal or state money is dispersed according to
federal or state regulation.
J. Recording
Step 24: The conservation easement will be recorded at the County Auditor's office. The
County or its designee will monitor the properties under easement at least
annually to ensure compliance with the easement.
Rcvised version adopted, [DATE] Paae 17
V1. CONSERVATION EASEMENTS
A. Description
A conservation easement deed is a legally binding document, which is recorded by the
County Auditor, forever restricting the property to agricultural, forestry, and/or
ecological and directly associated uses, and for which compensation may be paid. As an
easement in gross in perpetuity, restrictions are binding upon the owner and future
owners, and run with the land.
B. Conservation Easements
At the time of acquisition of development rights from a participating property, a
conservation easement is placed on the property permanently restricting development of
the site and protecting/preserving the agricultural, forestry, and ecological values
associated with the site. The conservation easement must be signed by both the property
owner(s) and the County Executive or his/her designee and recorded with the property
records for the property. A model conservation easement deed is included in these
guidelines as attachment D.
1. Conservation Easement Requirements
Conservation easements shall be on a form approved by the Whatcom County
Prosecuting Attorney and shall meet the following basic requirements:
a The deed shall be in recordable form and contain an accurate legal
description setting forth the metes and bounds of the area subject to the
easement;
b. Restriction is granted in favor of Whatcom County, or if designated by the
organizations as defined in RCW64.04.130;
C. Restriction is granted in perpetuity, and shall bind existing and future
property owners; and
d. Unless specifically provided for, nothing in the restrictions shall be
construed to convey to the public a right of access or use of the property,
and the owner of the property, his/her heirs, successors and assigns shall
retain exclusive right to such access or use subject to the terms of the
easement.
2. Filing
After the conservation easement is signed and notarized, it must be recorded with
the Whatcom County Auditor's Office.
C. Conservation Easement Conveyance
Conservation easements may be either donated or sold, or a combination of both.
Revised version adopted, [DATE] Pane 18
l . Conservation Easement Donation
a A donation of a total parcel will not be subject to eligibility except as
below in section c. Partial parcel donation shall be considered under the
same rule as for development rights sales. Notwithstanding the eligibility
of the property, acceptance of a fee interest or partial donation is within
the discretion of the County Council.
b. Whatcom County will accept voluntary donations or bequests of
development rights as perpetual easements in gross if meeting eligibility
criteria (except priority area criteria) and within the discretion of the
County Council.
C. All properties offered for development rights donation must meet the
following minimum eligibility criteria:
1. The CEP Oversight Committee will consider each offer on a case
by -case basis, considering the property's consistency with current
and future land uses, and
2. The property must be at least 1 acre in size, and
3. Be in agricultural or forestry use or contain ecological values and
has not been irrevocably devoted to a use inconsistent with the
above values,
4. Cannot be located within an Urban Growth Area, unless
coordination with the proximal small city is a component of the
donation.
2. Conservation Easement Sale
a Whatcom County will purchase perpetual conservation easements on
qualified properties in accordance with the policies and procedures of the
Whatcom County Conservation Easement Program, with Federal, State,
County, and/or private funds and any combination thereof.
b. All properties offered for conservation easement sale must meet minimum
eligibility criteria as contained in Section I11.
Revised version adopted, [DATE] Paae 19
V11. OPERATIONAL PROCEDURES FOR ACQUIRING
CONSERVATION EASEMENTS
A. Outreach and Publicity
Outreach shall occur to inform landowners about the program and may include
advertising in newspapers or other publications, landowner mailers, and presentations.
Application opening and closing dates, if any, will be determined by the CEP Oversight
Committee. The Committee shall have the discretion to consider applications in rounds,
or individually on a rolling basis. If selection deadlines are extended, the committee will
provide public notice of the extension.
B. Application and Ranking
Property owner(s) voluntarily submits an application(s) to the County. The
application must be submitted to the County on the form provided by the CEP,
and according to the relevant public notice. Applicants are to include at a
minimum:
a. Name(s) and address(es) of the property owner(s) of the site;
b. Legal description and parcel number(s);
C. Copy of the property deed and title;
d. Total acreage of farmland to be included in the CEP;
e. Current land use and soils;
f. Number of dwelling units;
g. Description of the farming operation;
h. Other information necessary to evaluate property eligibility;
i. Acknowledgement of intent to grant to Whatcom County a conservation
easement in a form provided by the County.
2. The Administrator shall review each application to determine completeness and
eligibility.
3. Applications meeting all minimum eligibility criteria shall be evaluated and
scored by the administrator and Oversight Committee according to the site
selection criteria. (See Section IV)
4. The CEP Oversight Committee shall provide the County Council with information
and scoring of properties recommended for conservation easement acquisition by
the committee. County Council shall approve or deny pursuit of conservation
easement acquisitions on the parcels.
5. The Administrator shall then arrange appraisals (or- alternate determination of
value) of eligible applicant properties as determined by the County Council.
6. The CEP Oversight Committee and Administrator shall provide updates to the
County Council discussing recommended purchases, possible program changes,
Revised version adopted, [DATE] Page 20
and anticipated budget needs.
C. Appraisal
Appraisals for eligible properties shall be conducted to determine the value of a
conservation easement on parcels in the order of acquisition priority and in
accordance with grant funding timelines until acquisition funds are expended.
a. The appraisals are to be made by an independent appraiser qualified to
appraise agricultural, forestry, and/or ecological land for conservation
easement purchases. An appraiser is deemed qualified if he or she possesses a
State of Washington certification as a State Certified General Real appraiser,
MAI designation by the Appraisal Institute (or equivalent), and at least five
years agricultural lands appraisal experience. Appraisers shall supply a
narrative or UAAR form report, which contains information as required by the
Uniform Standards of Professional Appraisal Practice (USPAP), Uniform
Appraisal Standards of Federal Land Acquisition (UASFLA) and as specified
in any contract with the County.
b. An appraisal report is an objective report of market facts. The appraisal report
must estimate both the unrestricted fee market value of the land only,
excluding the value of buildings, and the agricultural or forestry value of the
land only, of which the difference is the conservation easement value.
Both values shall be based primarily on an analysis of comparable sales. If
comparable sales data is not available for agricultural lands, the appraiser may
use local farmland rental values or capitalized production values to determine
the agricultural values of the land.
d. A description of the buildings or other improvements shall appear in the
appraisal report; however, the buildings will not be valued and therefore will
not be considered in determining the development rights value.
e. The appraiser shall report whether the subject property has any land use
restrictions, public or private and/or physical attributes, which limit the
developmental capability of the land.
The appraiser shall be advised that conservation easements are perpetual. The
perpetual nature of the easement shall take precedent over any agricultural
zoning status.
g. The appraisal shall be in writing and may be discussed with the owners prior
to the submission of written offers.
If the property owner believes the property has not been adequately appraised,
the owner may, within the time allotted, request that a review appraisal be
made at the owner's expense. This appraisal must be completed in accordance
with the guidelines set forth herein. If the review (owner's) appraisal is not
completed within the allotted time, the application will be delayed for future
Revised version adopted, [DATE] Pagc 21
committee consideration. If a review appraisal is completed, the appraisal will
be reviewed by the County's Appraiser. The County's Appraiser in
consultation with the Program Administrator and the CEP Oversight
Committee will accept, modify or reject the review appraisal. The
determination of the County's Appraiser is final.
i. The maximum value of development rights purchased by the County shall be
no more than the easement value contained in an appraisal report. The
easement value is the difference between the land's value before and after the
voluntary conservation easement.
2. Council and the Executive may specifically authorize an alternate approach to
determine value in accordance with state and local laws, in which case the
conditions of that approach would substitute for the appraisal guidelines as set
forth in C.1., above.
D. Title and Survey Issues
The Administrator shall request a title report confirming that applicant is the
owner of the property and has unrestricted legal right to transfer the development
rights (i.e. there must be clear title to transfer the property). The title report will be
provided to the County Attorney for review.
2. All encumbrances (including but not limited to: liens, mortgages and judgments)
against the property must be subordinated, satisfied or removed prior to
development rights acquisition. Mortgage and/or lien holder subordination and
releases may be required acknowledging that a conservation easement will be
placed on the property and subordinating their interest in the property to the deed
restriction.
3. At settlement for a County or joint development rights purchase, the
Administrator shall provide a title insurance policy issued by a title insurance
company authorized to conduct business in Washington State by the Washington
State Office of Insurance Commissioner. The cost of such title insurance shall be a
shared cost, with the county's portion considered a cost incident to the
conservation easement purchase and a reimbursable expense from the County's
Conservation Futures Fund.
4. It is the property owner's responsibility to survey (or provide a legal description
that meets specific standards) any exceptions from the easement and any
graveyards or cellular towers that may be located on the property. It is the
property owner's responsibility to provide a legal description for any commercial
operation on the farm that is not incidental to the overall farming operation, in
order to exclude it from the easement. Surveys shall be conducted by a licensed
surveyor in accordance with state and federal regulations.
E. Development Rights Value and Purchase Price
Revised version adopted, [DATE] Page 22
1. The maximum value of development rights purchased by the County shall be no
more than the easement value contained in an appraisal report. The easement
value is the difference between the land's value before and after the voluntary
conservation easement.
2. Development rights may only be purchased in perpetuity.
F. Recommendation of Conservation Easement Purchases by the CEP
Oversight Committee
The CEP Oversight Committee, in malting recommendations concerning
applications and purchase offers, shall consider the following:
a. Evaluation according to the site selection criteria
b. Consistency with County Comprehensive Plan
C. Cost relative to total allocations and appropriations
d. Proximity to other land subject to protection easements
2. Upon receiving the recommendations of the CEP Oversight Committee and the
Administrator, the County Executive shall review the recommendations and shall
take final action to authorize or deny proposed purchase terms and offers,
consistent with authorization by the County Council.
3. If a property is approved for conservation easement purchase, the Administrator
will meet with the property owner and review the terms, conditions and amount of
the County's offer. A written offer will be provided to the property owner.
Written notice shall also be provided to land not approved for conservation
easement purchase.
4. Within 30 days of receipt of a written offer from the County an applicant must
indicate in writing which of the following actions they intend to pursue:
a. Accept the offer.
b. Reject the offer.
L Reject offer outright
a. no further action
b. participate in future review
2. Submit a counter offer within 90 days of written notice of offer by
the County.
C. Failure to notify the County within 30 days shall constitute rejection of the
offer.
5. If the offer is accepted, the Administrator shall prepare a Purchase and Sale
agreement. USDA or State Funds must be paid as lump sum. The method of
payment shall be specified from the options listed below:
a. Lump Sum
b. Installment Purchase Agreement (IPA)
C. Like -Kind Exchange
d. Or a combination of the above
Revised version adopted, [DATE] Page 23
6. For conservation easement purchase utilizing the Installment Purchase Agreement
(IPA) program, the County Council at settlement shall provide an opinion of legal
counsel that the County's obligations to make installment payments of principal
and tax-exempt interest over time are legal, valid, and binding. And that such
payments are a general obligation of the County for which its full faith, credit, and
taxing power are pledged. Interest paid by the County is exempt from federal
income taxes.
7. All Agreements of Sale and Conservation Easements require the County
Council's approval.
G. Grant of the Agricultural, Forestry, and/or Ecological Protection
Conservation Easement
Before the purchase of development rights can be finalized, a conservation easement in a
form approved by the County Attorney and consistent with the policies of the CEP
Guidelines, must be placed on the property permanently restricting development of the
site and preserving its agricultural, forestry and/or ecological values.
The principal interest of the County is to ensure that lands are preserved and subsequently
stewarded in a manner that maintains and enhances their farmland, forestland, and/or
ecological values. There may be some instances where there is a public interest in another
public entity or non-profit organization to hold the conservation easement, for continued
stewardship and protection of the land. The County will consider:
The preferences of the donor or seller;
2. Administrative, monitoring, and enforcement issues associated with the
conservation easement and the resources available to address these issues;
3. Requirement of Federal, State or County funding sources utilized to purchase
conservation easements.
H. Conservation Easement Purchase Recommendations/Submission Requirements
County Council: Each recommendation for conservation easement purchases with
County funds, State funds, Federal funds, private donor funds or a combination of
funds shall be presented to the County Council at a regularly scheduled public
meeting.
2. Letters of Notification: Letters of notification for development rights purchases
will be sent to adjoining property owners by the Administrator.
Revised version adopted, I DATE Page 24
V111. CONSERVATION FUTURES JIB
A. Intent
This fund was established in 1992 to be used solely to acquire right and interests in open
space land, farm and agricultural land, and timber land, so as to protect, preserve,
maintain, improve, restore, limit the future use of, or otherwise conserve the property for
public use and enjoyment.
B. Fund Sources
This Conservation Futures Fund is funded by a real property tax applied to all real
property within Whatcom County at a rate determined by the county administration and
county council.
C. Fund Source Accounts
Council shall annually consider an allocation of Conservation Futures Fund to be placed
in a Conservation Easement Program Account.
D. Installment Payment Fund
The intent of installment payment funds, which are established by the County, is
to encumber and invest committed funds for which recipient property owners have
elected annual installment payments for a period, which may vary according to the
wishes of the property owner.
2. The full consideration of any transaction for which installment payments of five
years or less have been elected shall be placed in the fluid, less the amount of any
first installment to be paid at settlement. This amount shall be invested and annual
installment payments shall include the interest accrued.
3. Annual installment payments shall be made on or before January 20"' of each
year.
4. A property owner may enter into an Installment Purchase Agreement for fifteen
(15) to thirty (30) years at an interest rate to be negotiated between the property
owner and the County. The property owner will receive semi-annual interest
payments that are tax exempt. Principal will be paid in one lump sum at the end of
term. The property owner will also receive a security representing the Installment
Purchase Agreement. The property owner may sell or assign this Agreement.
Revised version adopted, IDATE] Page 25
E. Public Expenditures
All public expenditures from the Conservation Futures Fund are subject to
approval by Whatcom County Council and will be made in accordance with
approved disbursement procedures.
2. Expenditures from the CEP Account shall be limited to interests in qualified
agricultural, forestry, and/or ecological land participating in the Whatcom
County Conservation Easement Program, and other expenses necessary to the
acquisition of conservation easements authorized under RCW 84.34.200-.240.
3. The annual appropriation to the CEP by the County Council shall be available for
the calendar year in which the appropriation was made and or the subsequent
calendar year.
Revised version adopted, IDATEPage 26
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APPENDIX E
Soils List
Soil
#
Soil Name
APO
y/n
LESA
Group
PRIME
STATEWIDE
IMPORTANCE
Site
Index
1
ANDIC CRYOCHREPTS - 60 TO 90% SLOPES
N
0
0
2
ANDIC CRYOCI IREPTS-ROCK OUTCROP COMPLEX - 60 TO 90% SLOPES
N
0
0
3
ANDIC XEROCHREPTS - 60 TO 90% SLOPES
N
0
0
3
4
ANDIC XEROCHREPTS-ROCK OUTCROP COMPLEX - 60 TO 90% SLOPES
N
0
0
3
5
ANDIC XEROCHREPTS-COOL ROCK OUTCROP COMPLEX-60 TO 90% SLOPES
N
0
0
4
6
13AIZNESTON GRAVELLY LOAM - 0 TO 8% SLOPES
N
3
4
2
7
BARNESTON VERY GRAVELLY LOAM - 8 TO 15% SLOPES
N
0
4
2
8
BARNESTON VERY GRAVELLY LOAM - 15 TO 30% SLOPES
N
0
0
2
9
BARNESTON VERY GRAVELLY LOAM - 30 TO 60% SLOPES
N
0
0
2
10
BARNI IARDT GRAVELLY LOAM - 0 TO 5% SLOPES
N
1
1
3
11
BELLINGHAM SILTY CLAY LOAM - 0 TO 2% SLOPES
N
0
2
12
BIRCHBAY SILT LOAM - 0 TO 3% SLOPES
y
1
1
3
13
BIRCHBAY SILT LOAM - 3 TO 8% SLOPES
Y
0
0
yes
3
14
BIRCHBAY SILT LOAM - 8 TO 15% SLOPES
N
0
0
yes
3
15
BLAiNEGATE SILTY CLAY - 0 TO 1 % SLOPES
N
0
0
yes
16
BLAINEGATE-URBAN LAND COMPLEX - 0 TO 1 % SLOPES
N
0
0
17
BLETHEN GRAVELLY LOAM - 5 '1'0 15% SLOPES
N
0
0
yes
3
18
BLETHEN GRAVELLY LOAM - 15 TO 30% SLOPES
N
0
0
yes
3
19
BLETHEN GRAVELLY LOAM - 30 TO 60% SLOPES
N
0
0
3
20
BLETHEN VERY BOULDL-RY LOAM - 5 TO 40% SLOPES
N
0
0
3
21
BOROSAPRISTS - 0 TO 2% SLOPES
N
0
0
22
BRISCOT SIFT LOAM DRAINED - 0 TO 2% SLOPES
y
3
Z
23
BRISCOT ORIDIA AND SUMAS SOILS - 0 TO 2% SLOPES
N
0
5
24
CHUCKANUT LOAM - 3 TO 8% SLOPES
N
0
0
yes
25
CI-IUCKANUT LOAM -BEDROCK SUBSTRATUM - 5 TO 15% SLOPES
N
0
0
yes
2
26
CHUCKANUT LOAM -BEDROCK SUBSTRATUM - 15 TO 30% SLOPES
N
0
0
yes
2
27
CIUCKANUT LOAM -BEDROCK SUBSTRATUM - 30 TO 60% SLOPES
N
0
0
2
28
CHUCKANUT-SHALCAR COMPLEX - 0 TO 15% SLOPES
N
0
0
yes
2
29
CHUCKANUT-URBAN LAND COMPLEX - 5 TO 20% SLOPES
N
0
2
30
CLENDENEN GRAVELLY SILT LOAM - 5 TO 30% SLOPES
N
0
0
31
CLIPPER SILT LOAM -DRAINED - 0 TO 2% SLOPES
y
2
2
32
COMAR SILT LOAM - 5 TO 15% SLOPL-:S
N
0
0
yes
2
33
COMAR SILT LOAM - 15 TO 30% SLOPES
N
0
0
yes
2
34
COMAR SILT LOAM - 30 TO 60°/n SLOPES
N
0
0
2
35
CRINKE,R VERY CHANNERY SII I' LOAM - 30 TO 60% SLOPES
N
0
0
36
CUPPLES GRAVELLY LOAM - 5 TO 30% SLOPES
N
0
0
2
37
CUPPLES GRAVELLY LOAM - 30 TO 60% SLOPES
N
0
0
2
38
DEKAPEN LOAM - 8 TO 25% SLOPES
N
0
0
yes
3
39
DEMING GRAVELLY SILT LOAM - 5 TO 30% SLOPES
N
0
0
40
DEMING GRAVELLY SILT LOAM - 30 TO 60% SLOPES
N
0
0
41
DIOBSUD GRAVELLY SILT LOAM - 30 TO 60% SLOPES
N
0
0
42
EDPRO VERY GRAVELLY SILT LOAM - 8 TO 30% SLOPES
N
0
0
43
EDPRO VERY GRAVELLY SILT LOAM - 30 TO 60% SLOPES
N
0
0
Rcvised version adopted, November 20, 2018 Page 27
44
EDPRO VERY STONY SILT LOAM - 30 TO 60% SLOPES
N
0
0
45
IDMONDS-WOODLYN LOAMS - DRAINED - 0 TO 2% SLOPES
y
0
0
46
ELIZA SILT LOAM - DRAINED - 0 TO 1% SLOPES
N
0
5
47
EL1ZA-TACOMA SILT LOAMS - 0 TO 1% SLOPES
N
0
5
48
E.VERETT GRAVELLY SANDY LOAM -HARD SUBSTRATUM - 2 TO 8% SLOPES
N
0
4
3
49
EVERETT VERY GRAVELLY SANDY LOAM - 8 TO 15% SLOPES
N
0
4
3
50
EVERET'T VERY GRAVELLY SANDY LOAM - 15 TO 35% SLOPES
N
0
0
yes
3
51
EVERETT COMPLEX - 2 TO 8% SLOPES
N
0
4
3
52
E.VERETT-URBAN LAND COMPLEX - 5 TO 20% SLOPES
N
0
0
3
53
EVERSON SILT LOAM -DRAINED - 0 TO 2% SLOPES
N
2
2
54
PISHTRAP MUCK -DRAINED - 0 TO 2% SLOPES
Y
3
2
55
GALLUP SILT LOAM - 30 TO 60% SLOPES
N
0
0
%
GALLUP SILT LOAM - 60 TO 80%
N
0
0
57
GALLUP SILT LOAM -COLD - 30 TO 60% SLOPES
N
0
0
58
GALLUP SILT LOAM -COLD - 60 TO 80% SLOPES
N
0
0
59
GETCHELL LOAM - 3 TO 30% SLOPES
N
0
0
60
GETCHELL LOAM - 30 TO 60% SLOPES
N
0
0
61
HALE SILT LOAM - 0 TO 2% SLOPES
N
0
2
4
62
HALE SILT' LOAM -DRAINED - 0 TO 2% SLOPES
y
2
2
4
63
HALLENTON SILT LOAM -DRAINED - 0 TO 1 % SLOPES
N
0
2
64
HANNEGAN VERY GRAVELLY LOAM - 15 TO 40% SLOPES
N
0
0
65
HARTNIT SILT LOAM -COLD - 5 TO 30% SLOPES
N
0
0
66
HARTNIT SILT LOAM -COLD - 30 TO 60% SLOPES
N
0
0
67
HARTNIT-GALLUP-ROCK OUTCROP COMPLEX - 50 TO 80% SLOPES
N
0
0
68
HEISLER VERY GRAVELLY SILT LOAM - 8 TO 30%
N
0
0
yes
2
69
HEISLER VERY GRAVELLY SILT LOAM - 30 TO 60% SLOPES
N
0
0
2
70
HINKER VERY CHANNERY SILT LOAM - 5 TO 30% SLOPES
N
0
0
71
HINKER VERY CHANNERY SILT LOAM - 30 TO 60% SLOPES
N
0
0
72
HISTOSOLS-PONDED - 0 TO 1% SLOPES
N
0
2
73
HOVDE SILT LOAM - 0 TO 2% SLOPES
N
0
0
yes
74
1IOZOMEEN GRAVELLY LOAM - 20 TO 45% SLOPES
N
0
0
75
HYDRAQUENTS- TITAL - 0 TO 1 % SLOPES
N
0
0
76
JACKMAN GRAVELLY SILT LOAM - 30 TO 60% SLOPES
N
0
0
77
JORGENSEN GRAVELLY SILT LOAM - 3 TO 15% SLOPES
N
0
0
78
JUG VERY GRAVELLY LOAM - 3 TO 15% SLOPES
N
0
0
yes
2
79
KICKERVILLE SILT LOAM - 0 TO 3% SLOPES
Y
1
1
2
80
KICKERVILLE SILT LOAM -3 TO 8% SLOPES
y
1
1
2
81
KICKERVILLE SILT LOAM - 8 TO 15% SLOPES
N
0
0
yes
2
82
KICKERVILLE-URBAN LAND COMPLEX - 0 TO 3% SLOPES
N
0
0
2
83
KINDY GRAVELLY SILT LOAM - 8 TO 30% SLOPES
N
0
0
4
84
KINDY GRAVELLY SILT LOAM - 30 TO 60% SLOPES
N
0
0
4
85
KINDY-OSO COMPLEX - 5 TO 40% SLOPES
N
0
0
86
KLAWATTI VERY GRAVELLY LOAM - 30 TO 60% SLOPES
N
0
0
87
KLAWATTI V. GRAVELLY SANDY LOAM-SERPENTINE-10 TO 30% SLOPES
N
0
0
88
KLAWATTI V. GRAVELLY SANDY LOAM-SERPENTINE-10 TO 30% SLOPES
N
0
0
89
KLAWATTI-ROCK OUTCROP COMPLEX - 60 TO 80% SLOPES
N
0
0
90
KLINE GRAVELLY SANDY LOAM - 2 TO 8% SLOPES
N
0
4
3
91
KULSIIAN LOAM - 5 TO 30% SLOPES
N
0
0
92
KILSHAN LOAM - 30 TO 60% SLOPES
N
0
0
93
LABOUNTY SILT LOAM - 0 TO 2% SLOPES
N
4
2
Revised version adopted, November 20, 2018 Pabc 28
94 1
LABOUNTY SILL' LOAM -DRAINED - 0 TO 2% SLOPES
N
0
2
95
LARUSH SILT LOAM - 0 TO 3% SLOPES
Y
3
1
2
96
LAXTON LOAM - 0 TO 30% SLOPES
y
1
1
2
97
LAXTON LOAM - 3 TO 8% SLOPES
Y
1
1
2
98
LAXTON LOAM - 8 TO 15% SLOPES
N
0
0
yes
2
99
LYNDEN SANDY LOAM
Y
1
1
3
100
LYNDEN SANDY LOAM - 3 TO 7% SLOPES
Y
1
1
3
101
LYNDEN-URBAN LAND COMPLEX - 0 TO 5% SLOPES
N
0
0
3
102
LYNNWOOD SANDY LOAM - 0 TO 5% SLOPES
N
0
4
3
103
LYNNWOOD SANDY LOAM - 5 TO 20% SLOPES
N
0
0
yes
3
104
MONTBORNE GRAVELLY LOAM - 5 TO 30% SLOPES
N
0
0
3
105
MONTBORNE GRAVELLY LOAM - 30 TO 60% SLOPES
N
0
0
3
106
MONTBORNE-RINKER COMPLEX - 30 TO 60% SLOPES
N
0
0
3
107
MT. VERNON FINE SANDY LOAM - 0 TO 2% SLOPES
Y
2
1
2
108
NATI LOAM - 5 TO 15% SLOPES
N
0
0
yes
2
109
NATO LOAM = 15 TO 30% SLOPES
N
0
0
yes
2
110
NATI LOAM - 30 TO 60% SLOPES
N
0
0
3
III
NEPTUNE VERY GRAVELLY SANDY LOAM- 0 TO 3% SLOPES
N
0
4
3
112
OAKES VERY GRAVELLY LOAM - 8 TO 30% SLOPES
N
0
0
2
113
OAKES VERY GRAVELLY LOAM - 30 TO 60% SLOPES
N
0
0
2
114
OAKES VERY GRAVELLY LOAM - 60 TO 80% SLOPES
N
0
0
4
115
ORIDIA SILT LOAM -DRAINED - 0 TO 2% SLOPES
Y
3
2
116
PANGBORN MUCK -DRAINED - 0 TO 2% SLOPES
Y
3
2
117
PICKETT-ROCK OUTCROP COMPLEX - 5 TO 30% SLOPES
N
0
0
4
118
PICKE'TT-ROCK OUTCROP COMPLEX - 30 TO 60% SLOPES
N
0
0
4
119
PILCHUCK LOAMY FINE SAND - 0 TO 3% SLOPES
N
0
7
3
120
PITS
N
0
0
121
POTCHUB LOAM - 8 TO 30% SLOPES
N
0
0
122
POTCHUB LOAM - 30 TO 60% SLOPES
N
0
0
123
PUGET SILT LOAM -DRAINED - 0 TO 2% SLOPES
Y
3
2
124
PUYALLUP FINE SANDY LOAM - 0 TO 2% SLOPES
Y
2
4
2
125
REVEL LOAM - 5 TO 30% SLOPES
N
0
0
4
126
REVEL LOAM - 30 TO 60% SLOPES
N
0
0
4
127
REVEL -WELCOME -ROCK OUTCROP COMPLEX - 30 TO 60% SL.OPES
N
0
0
4
128
RINKER VERY CHANNERY SILT LOAM - 8 TO 30% SLOPES
N
0
0
yes
3
129
RINKER VERY CHANNERY SILT LOAM - 30 TO 60% SLOPES
N
0
0
3
130
RIVERWASH
N
0
0
131
ROCK OUTCROP
N
0
0
132
ROCK OUTCROP-KULSI IAN COMPLEX - 60 TO 90% SLOPES
N
0
0
133
RUBBLE LAND
N
0
0
134
SAAR GRAVELLY SJ T LOAM - 5 TO 30% SLOPES
N
0
0
135
SAAR GRAVELLY SILT LOAM - 30 TO 60% SLOPES
N
0
0
136
SAAR-I4ARTNIT COMPLEX - 5 TO 40% SLOPES
N
0
0
137
SANDUN VERY GRAVELLY SANDY LOAM - 5 TO 30% SLOPES
N
0
0
138
SANDUN VERY GRAVELLY SANDY LOAM - 30 TO 60% SLOPES
N
0
0
139
SEHOME LOAM - 2 TO 8% SLOPES
Y
0
1
2
140
SEHOME LOAM - 8 TO 15% SLOPES
N
0
0
yes
2
141
SEHOME GRAVELLY LOAM - 15 TO 30% SLOPES
N
0
0
yes
2
142
SF'.HOME GRAVELLY LOAM - 30 TO 60% SLOPES
N
0
0
2
143
ISI IALCAR MUCK -DRAINED - 0 TO 2% SLOPES
Y
3
2
Revised version adopted, November 20, 2018 Pa cTc 29
144
SHALCAR AND PISHTRAP SOILS - 0 TO 2% SLOPES
N
0
2
145
SHUKSAN GRAVELLY SILT LOAM - 5 TO 30% SLOPES
N
0
0
146
SHUKSAN GRAVELLY SILT LOAM - 30 TO 60% SLOPES
N
0
0
yes
147
Sl IUKSAN-KULSI IAN-ROCK OUTCROP COMPLEX - 50 TO 80% SLOPES
N
0
0
148
SKIPOPA SILT LOAM - 0 TO 8% SLOPES
y
0
2
3
149
SKIPOPA-BLAINEGATE COMPLEX - 0 TO 8% SLOPES
N
0
2
yes
3
150
SKYKOMISH VERY GRAVELLY LOAM - 3'1'0 30% SLOPES
N
0
0
3
151
SNOHOMISI I SILT LOAM -DRAINED - 0 TO 2% SLOPES
y
3
2
152
SNOQUALMIE GRAVELLY LOAMY SAND - 0 TO 3% SLOPES
N
0
1 4
yes
3
153
SORENSEN VERY GRAVELLY SILT LOAM - 8 TO 30% SLOPES
N
0
0
yes
2
154
SORENSEN VERY GRAVELLY SILT LOAM - 30 TO 60% SLOPES
N
0
0
2
155
SPRINGSTEEN VERY GRAVELLY LOAM - 30 TO 60% SLOPES
N
0
0
156
SQUALICUM GRAVELLY LOAM - 5 TO 15% SLOPES
N
0
0
yes
2
157
SQUALICUM GRAVELLY LOAM - 15 TO 30% SLOPES
N
0
0
2
158
SQUALICUM GRAVELLY LOAM - 30 TO 60% SLOPES
N
0
1 0
2
159
SQUALICUM-URBAN LAND COMPLEX - 5 A-1.0 20% SLOPES
N
0
0
2
160
SQUIRES VERY CHANNERY LOAM - 5 TO 30% SLOPES
N
0
0
2
161
SQUIRES VERY CHANNERY LOAM - 30 TO 60% SLOPES
N
0
0
2
162
SUMAS SILT LOAM -DRAINED - 0 TO 2% SLOPES
Y
3
2
163
TACOMA SILT LOAM - 0 TO I% SLOPES
N
0
5
164
TACOMA SILT LOAM -DRAINED - 0 TO 1% SLOPES
N
0
5
165
TROMP LOAM - 0 l'O 2% SLOPES
y
1
1
3
166
TWINSI VERY GRAVELLY LOAM - 30 TO 60% SLOPES
N
0
0
167
TWINSI VERY STONY LOAM - 30 TO 60% SLOPES
N
0
0
168
TYPIC CRYORTHODS - 60 TO 90% SLOPES
N
0
0
169
TYPIC CRYORTHODS-ROCK OUTCROP COMPLEX - 60 TO 90% SLOPES
N
0
0
170
TYPIC PSAMMAQUENTS-TIDAL- 0 TO 1% SLOPES
N
0
0
yes
171
URBAN LAND
N
0
0
172
URBAN LAND-WHATCOM-LABOUNTY COMPLEX - 0 TO 8% SLOPES
N
0
0
yes
2
173
VANZANDT VERY GRAVELLY LOAM - 5 TO 15% SLOPES
N
0
0
2
174
VANZANDTI' VERY GRAVELLY LOAM - 15 TO 30% SLOPES
N
0
0
2
175
VANZANDT VERY GRAVELLY LOAM - 30 TO 60% SLOPES
N
0
0
2
176
WELCOME LOAM - 5 TO 30% SLOPES
N
0
0
yes
3
177
WELCOME LOAM - 30 TO 60% SLOPES
N
0
0
1
3
178
WHATCOM SILT LOAM - 0 TO 3% SLOPES
y
2
1
2
179
WHATCOM SILT LOAM - 3 TO 8% SLOPES
Y
4
1
2
180
WHATCOM SILT LOAM - S TO 15% SLOPES
N
0
0
2
181
WHATCOM SILT LOAM - 30 TO 60% SLOPES
N
0
0
2
182
WHATCOM-LABOUNTY SILT LOAMS - 0 TO 8% SLOPES
N
4
2
2
183
WHATCOM-LABOUNTY SILT LOAMS - 0 TO 15% SLOPES
N
0
2
yes
2
184
WI ITEI IORN WILT LOAM - 0 TO 2% SLOPES
Y
3
2
185
WICKERSI JAM CHANNERY SILT LOAM - 0 TO 8% SLOPES
N
4
1
2
186
WINSTON SILT LOAM - 0 TO 3% SLOPES
y
0
1
2
187
WINSTON LOAM - 3 TO 15% SLOPES
N
0
0
2
188
WINSTON LOAM - 15 TO 40% SLOPES
N
0
0
2
189
WISEMAN VERY CHANNERY SAND LOAM - 0 TO 8% SLOPES
N
0
4
3
190
WOLLARD GRAVELLY SILT LOAM - 30 TO 60% SLOPES
N
0
0
191
YELM LOAM - 3 TO 8% SLOPES
Y
I
I
yes
2
192
YELM-URBAN LAND COMPLEX - 0 TO 3% SLOPES
N
0
0
2
Revised version adopted, November 20, 2018 Page 30
APPENDIX F
Model Conservation Easement Deed
A sample Conservation Easement Deed based on the assumption of matching funds form the
USDA-NRCS Agricultural Conservation Easement Program, is included in the following pages.
After Recording Return To:
Whatcom County
311 Grand Avenue, Suite 108
Bellingham, WA 98225
DOCUMENT TITLE: AGRICULTURAL CONSERVATION EASEMENT
GRANTOR:
GRANTEES: WHATCOM LAND TRUST AND WHATCOM COUNTY
ABBR. LEGAL DESCRIPTION:
Full Legal Description in Exhibit A
TAX PARCEL #
AGRICULTURAL CONSERVATION EASEMENT DEED
This Conservation Easement Deed ("Deed") is made and entered into this day of
20, by ("Grantor"), the WHATCOM LAND TRUST
("Trust"), and WHATCOM COUNTY, WASHINGTON ("County") ("collectively, Grantees"),
and with a right of enforcement to the United States of America (the United States), acting by and
through the United States Department of Agriculture (USDA) Natural Resources Conservation
Service (NRCS) on behalf of the Commodity Credit Corporation (CCC), as its interest appears
herein, for the purpose of forever conserving the agricultural productivity of the Protected
Property and its value for resource preservation and as open space.
1. RECITALS
1.1. Grantor is fee simple owner of real property (the "Protected Property") in Whatcom County,
Washington, that is the subject of this Easement. Exhibit A is the legal description and Exhibit
B is a site plan for that Protected Property, both of which are attached and incorporated herein
by reference.
31
1.2. While "Grantees" include the Whatcom Land Trust and Whatcom County, use of the term
"Grantees" does not imply that joint approval is required to exercise Grantees' rights and
responsibilities under this Easement. Those rights and responsibilities may be independently
exercised by any Grantee.
1.3. The Protected Property is approximately acres and is currently farmed.
1.4. The Protected Property has significant agricultural value to Grantees and to the people of
Whatcom County and the State of Washington. The agricultural values include productive soil
types and agricultural infrastructure as described in Baseline Documentation (Exhibit D). It is
the intent of all parties that the agricultural values described in the baseline shall remain for the
life of this easement and shall be used along with annual monitoring to identify future changes
on the easement area.
1.5. Grantor and Grantees agree that the conveyance of rights and imposition of restrictions
described in this Easement furthers the intent of Whatcom County Ordinance No. 2002-054,
provided in Exhibit C, which establishes the Purchase of Development Rights Program to
preserve land for agricultural purposes and has substantial public benefits.
1.6. As owner of the Protected Property, Grantor has the right to convey the rights and restrictions
contained in this Easement in perpetuity.
1.7. Under the authority of the Agricultural Conservation Easement Program, (16 U.S.C. Sections
3838h and 3838i) the United States Department of Agriculture's Natural Resources
Conservation Service (herein "NRCS") has provided on behalf of the Commodity Credit
Corporation $ ( and 00/100 dollars) to Grantee for the acquisition
of this Conservation Easement, entitling the United States to the rights identified herein.
2. CONVEYANCE AND CONSIDERATION
2.1. For the reasons stated above, in consideration of mutual covenants, terms, conditions, and
restrictions contained in this Easement, and in consideration of payment of $ by
the Whatcom County and the NRCS to Grantor, Grantor hereby grants, conveys and warrants
to Grantees a Conservation Easement in perpetuity over the Protected Property, consisting of
certain rights and restrictions as defined in this Easement Deed.
2.2. This Easement Deed is a conveyance of an interest in real property under the provisions of
RCW 64.04.130.
2.3. Grantor and Grantees intend that this Easement run with the land and that it shall be binding
upon Grantor's, successors and assigns in perpetuity.
3. PURPOSE
32
The purpose of this Easement is to: (1) protect the present and future ability to use the Protected
Property for agricultural purposes; (2) preserve the soil as a valuable resource and prevent activities
that will impair the ability, now or in the future, to use the soil to produce food and fiber; (3) enable
the Protected Property to remain in agricultural use for the production of food and fiber by preserving
and protecting in perpetuity its agricultural values, character, use and utility, and to prevent any use or
condition of the Protected Property that would significantly impair or interfere with its agricultural
values, character, use or utility. This statement of purpose is intended as a substantive provision of the
Easement. Any ambiguity or uncertainty regarding the application of the provisions of this Easement
will be resolved so as to further this purpose. The granting of this Easement will also serve the
"conservation purpose" of farmland protection as identified in Section 170(h)(4)(A) of the Internal
Revenue Code.
4. RELATIONSHIP OF PARTIES
4.1. Unless noted otherwise, Whatcom County and the Whatcom Land Trust share all rights and
responsibilities of Grantees under this Easement. For purposes of administering, monitoring
and enforcing the terms of the Easement, the Whatcom Land Trust is the lead Grantee, unless
Grantor is notified otherwise. As the lead Grantee, the Whatcom Land Trust has authority to
act alone and at its sole discretion in exercising all rights and responsibilities of Grantees
under this Easement. Grantor shall treat the Whatcom Land Trust as its contact for all matters
regarding this Easement. Whatcom County and the Whatcom Land Trust may jointly take
enforcement action, or if the Whatcom Land Trust fails to enforce the terms of this Easement,
Whatcom County may do so alone.
4.2. The Trust will consult the County regarding any violation of the Easement that threatens the
purpose of this Easement as described in Section 3. If a less serious violation is determined to
have occurred, the Trust will report to the County the nature of the violation and the response
to that violation by the Trust.
4.3. The above Section 4.1. does not pertain to monitoring and enforcement of a conservation farm
plan, the responsibility for which rests with NRCS and Whatcom County as described in
Section 9.
5. RIGHT OF ENFORCEMENT
Under this Conservation Easement, the United States is granted the right of enforcement in
order to protect the public investment. This is a vested property right that cannot be
condemned by State or local government. The Secretary of the United States Department of
Agriculture (the Secretary) or his or her assigns, on behalf of the United States, may exercise
this right of enforcement under any authority available under State or Federal law if the
Grantees fail to enforce any of the terms of this Conservation Easement, as determined in the
sole discretion of the Secretary.
33
The United States shall be entitled to recover any and all administrative and legal costs from
the County Grantee, including attorney's fees or expenses, associated with any enforcement
or remedial action as it relates to the enforcement of this Easement.
Additionally, the United States is granted the right to enter the Property at a reasonable time and upon
reasonable prior written notice to Grantor, for the purpose of making a general inspection of the
Protected Property, in accordance with the Agricultural Conservation Easement Program
requirements.
6. PERMITTED USES AND ACTIVITIES
Grantor inay:
6.1. Engage in the production of food and fiber and other uses and activities consistent with the
purpose of this Easement so long as those uses or activities are not expressly prohibited in
Section 7 below.
6.2. Continue any use or activity not permitted by this easement at the time this Easement is signed
provided it is not contrary to the purposes of this Easement and provided that such use or
activity is described in this section.
6.3. Remove, Maintain, Expand, or Replace, existing agricultural structures and roads and
construct new agricultural structures, roads, and improvements used primarily for agricultural
enterprises on the Protected Property within the "Farmstead", as defined in Section 12 of this
Easement, and shown on Exhibit B, so long as expansion or new construction does not exceed
the area of impervious surfaces allowed in Section 7.4. Agricultural structures may include,
without limitation, fencing, offices, warehouses, temporary farm worker housing, livestock
housing and related structures, equipment storage and maintenance facilities, facilities related
to the processing and sale of farm products predominately grown on the Protected Property,
temporary hoop houses and temporary greenhouses with no foundation so long as the
structures' primary use is to support the agricultural activities on the Protected Property or
agricultural activities on other property under the control of the Grantor.
6.4. Remove, Maintain, Expand, or Replace temporary hoop houses and temporary greenhouses
with no foundation outside of the Farmstead area so long as the structures' primary use is to
support the agricultural activities on the Protected Property or agricultural activities on other
property under the control of the Grantor.
6.5. On the "Farmstead", as defined in Section 12 of this Easement, and shown in Exhibit B,
engage in any uses or activities, that do not impair the ability to farin the remainder of the
Protected Property in the present or future and that are not prohibited by Section 7 below.
6.6. Plant or maintain trees on the Agricultural Land, as defined in Section 12 of this Easement
only as follows:
34
6.6.1. Maintain a woodlot for the production of firewood to be used on the Protected
Property.
6.6.2. Plant Christmas trees and short rotation hardwoods not subject to the excise tax
imposed by RCW 84.33, provided that adequate provision is made for the removal of
trees, including stumps and roots, at the termination of the Christmas tree or short
rotation hardwood farming operation.
6.6.3. Install and maintain trees on the riparian portion of the property according to the
Conservation Reserve Enhancement Program and/or Best Management Practices in
coordination with the Whatcom Conservation District.
6.6.4. Plant and maintain trees to provide shading for grazing livestock.
6.6.5. Plant and maintain trees used in fruit or nut production.
6.7. Install a small-scale wind and solar power generator for the primary purpose of generating
electric power for use on the Protected Property, provided however that incidentally generated
excess power may be sold through the electric grid and further provided that Grantee must
approve the scale and location of any such small-scale wind and solar power generator prior to
installation.
6.8. Grantor has the right to conduct non -farm related commercial or industrial activity provided
that conduct of such activity uses no more than one percent (1%) or one acre of the Protected
Property, whichever is less, or provided such activity utilizes buildings existing at the time the
Conservation Easement is signed and does not involve installation of facilities or expenditure
of capital that would hinder the future use of buildings for agricultural purposes. Said activity
must be compatible with the purpose of this Conservation Easement and agriculture and
forestry uses of the Protected Property and subordinate to the agricultural and residential use
of the Protected Property. Activities which market petroleum or chemical products are
prohibited.
7. PROHIBITED USES AND RESTRICTIONS ON PERMITTED USES
Unless specifically permitted by Section 6 above, and as may be necessary to carry out those
reserved rights, Grantor shall not engage in or permit any of the following activities on the
Protected Property:
7.1. Use or activities inconsistent with the purpose of this Easement.
7.2. Legal or "de facto' division, subdivision, or partitioning of the land or the separate sale of any
portion of the Property, even if that portion of the Property constitutes a separate legal parcel.
This restriction does not prohibit minor boundary line adjustments with adjoining agricultural
land, provided there is no net loss of land to the Property, and provided that no new parcel
may be created by such boundary line adjustments, and such adjustments does not affect over
35
two acres in total for the entire Property. Any new land gained through a boundary line
adjustment is subject to the terms of this agreement.
7.3. Place or construct any residential building, structures, or other residential improvements of any
kind except those utilized to house farm workers.
7.4. Cover more than two percent (2%) of the area (approximately square feet) of the
Protected Property with impervious surfaces, including, without limitation, asphalt, concrete,
buildings, or ponds, except animal waste holding ponds.
7.5. Construct non-agricultural structures or facilities.
7.6. Conduct any use or activity that removes or damages the long -teen viability of the soil or
impairs the ability to farm the Protected Property except for conservation or best management
practices as specified in the NRCS Field Office Technical Guide for Whatcom County.
7.7. Transfer, encumber, sell, relinquish, forfeit or otherwise separate water rights from title to the
Protected Property except that with the consent of the County, such portion of the Water
Rights that are excess and not then needed for agricultural purposes on the Property may either
be leased for a period not to exceed ten years for the beneficial use for agricultural activities
on land other than the Protected Property, or temporarily enrolled in the state Trust Water
Right Program for a period not to exceed ten years or conveyed to the County as provided in
Section 8, so long as sufficient water rights are retained by grantor to ensure adequate water to
carry on agricultural activities on the protected land now and in the future.
7.8. Mine or extract soil, sand, gravel, oil or other mineral, except that Grantor may extract soil,
sand, and gravel solely for a permitted use on the Protected Property in a manner consistent
with the conservation purposes of this easement. Such alteration shall not exceed two acres.
7.9. Use off -road motor vehicles on the Protected Property or grant permission for such use except
as necessary in the accomplishment of the agriculture, forestry, habitat management, law
enforcement and public safety, or conservation uses of the Protected Property, provided that
no use of motorized vehicles shall create impacts that are detrimental to the productivity of the
soils on the Protected Property and the Purposes of this Easement Deed.
7.10. Grant easements or rights -of -way for power lines, gas lines, sewer lines, water lines,
telecommunications towers, and wind farms.
7.11. Expand or intensify any use or activity existing at the time this Easement Deed is signed that is
contrary to the purpose of this Easement or prohibited in this section.
7.12. The dumping or accumulation of trash on the Protected Property is prohibited, except that the
storage of agricultural products for use on the Protected Property and by-products generated
on the Protected Property is permitted.
8. WATER RIGIITS
36
8.1. The Parties agree that any Water Rights must be maintained on the Protected Property to
ensure the protection of the Agricultural Values.
8.2. Trust will include reference, in Baseline Documentation (Exhibit D), to any water rights
associated with the Protected Property. hl its monitoring visits, Trust will inquire regarding the
status and protection of water rights and will include in its Annual Monitoring Report any new
infornation about water rights on the Protected Property and concerns, if any, about whether
water rights are being protected. If at any time Trust believe that Grantor is not sufficiently
informed about protecting Grantor's water rights, Trust will refer Grantor to Whatcom County
and will urge Grantor to take the Water Rights protection actions.
8.3. Under this Easement, Grantor is obligated to take appropriate action to protect water rights on
the Protected Property. Section 4 RELATIONSHIP OF PARTIES notwithstanding, Whatcom
County, not the Trust, has responsibility for enforcing this Grantor obligation. If Grantor fails
to take appropriate action to protect water rights on the Protected Property, Whatcom County
may pursue remedies in accordance with Sections 13 and 14 of this Easement or may itself
take appropriate action to protect the water rights.
8.4. If Grantor is unable or unwilling to take the Water Rights protection action, and the Water
Rights are under threat of abandonment, relinquishment, loss or forfeiture, Grantor shall
convey ownership of said Water Rights to County for County's use in order to maintain the
agricultural activity on the Protected Property.
9. CONSERVATION PLAN
9.1. As required by section 1238I of the Food Security Act of 1985, as amended, the Grantor, its
successors, or assigns, shall conduct all agricultural operations on the Protected Property in a
manner consistent with a Conservation Plan prepared in consultation with the Whatcom
Conservation District and approved by NRCS. This conservation plan shall be developed
using standards and specifications of the NRCS Field Office Technical Guide and 7 CFR Part
12 that are in effect on the date this Easement Deed is executed. However, the Grantor may
develop and implement a Conservation Plan that proposes a higher level of conservation and is
consistent with NRCS Field Office Technical Guide standards and specifications. The
Conservation Plan is incorporated into this Conservation Easement Deed by reference. NRCS
shall have the right to enter upon the Protected Property, with advanced notice to the Grantor,
in order to monitor compliance with the Conservation Plan.
9.2. In the event of noncompliance with the Conservation Plan, NRCS shall work with the Grantor
to explore methods of compliance and give the Grantor a reasonable amount of time, not to
exceed twelve months, to take corrective action. If the Grantor does not comply with the
conservation plan, NRCS will inform the County of the Grantor's noncompliance. The County
shall take all reasonable steps (including efforts at securing voluntary compliance and, if
necessary, appropriate legal action) to secure compliance with the conservation plan following
written notification from NRCS that (a) there is a substantial, ongoing event or circumstance
of non-compliance with the conservation plan, (b) NRCS has worked with the Grantor to
37
correct such noncompliance, and (c) Grantor has exhausted its appeal rights under applicable
NRCS regulations. The landowner shall be liable for any costs incurred by NRCS as a result of
landowner's negligence or failure to comply with the easement requirements as it relates to
conservation planning violations.
9.3. If the NRCS standards and specifications for highly erodible land are revised after the date of
this Deed based on an Act of Congress, NRCS will work cooperatively with the Grantor to
develop and implement a revised Conservation Plan. The provisions of this section apply to
the highly erodible land conservation requirements of the Farm and Ranch Lands Protection
Program and are not intended to affect other natural resources conservation requirements to
which the Grantor may be or become subject.
9.4. For the purpose of this Conservation Easement, references and requirements relating to highly
erodible lands do not apply to land over which this Conservation Easement is granted. There
are no highly erodible lands on the Protected Property and none have been designated in
Whatcom County.
10. RIGHTS CONVEYED TO GRANTEES
To accomplish the purpose of this Easement, the following rights are conveyed to Grantees:
10.1. To accomplish the purpose of this Easement and to enforce specific rights and restrictions
contained in the Easement Deed.
10.2. To enter the land at least once a year, at a mutually agreeable time and upon notice to the
Grantor, for the purpose of inspection and monitoring compliance with this Easement.
10.3. To enter the land at such other times as necessary if Grantees have reason to believe that a
violation of the Easement is occurring or has occurred, for the purpose of mitigating or
terminating the violation and otherwise enforcing the provisions of the Easement. Such entry
will be with prior notice as is reasonable under the circumstances.
10.4. In the event of uses or activities inconsistent with the purpose and provisions of this Easement,
the Grantees may obtain damages, an injunction, abatement, rescission, restoration and any
other remedies available in law or equity.
10.5. Forbearance by the Grantees to exercise any rights under this Easement in the event of a
breach shall not be deemed to be a waiver of Grantees' rights under the Easement.
11. NO PUBLIC ACCESS
This Easement provides no right of access to the general public.
IN
12. BASELINE DOCUMENTATION
12.1. To establish the present condition of the Protected Property so that Grantees are able to
monitor future uses and assure compliance with the terms of this Easement, Grantees will, at
their expense, by the date of this Easement prepare Baseline Documentation sufficient to
establish the condition of the Protected Property as of the signing of this Easement Deed. The
Baseline Documentation may consist of reports, maps, photographs, and other documentation.
Grantor and Grantees will execute a statement verifying that the Baseline Documentation
accurately represents the condition of the Protected Property as of this time. Baseline
Documentation is contained in Exhibit D. The Baseline Documentation will delineate the
Farmstead and Agricultural Land as defined below.
12.2. The Baseline Documentation will specifically establish the area and extent of the Farmstead,
which includes that portion of the Property used for residential buildings and buildings and
uses accessory to residential buildings, as well as that portion used for agricultural buildings,
structures and improvements and those adjacent areas where future expansion of buildings,
structures and improvements are contemplated. In this Easement Deed, the Farmstead is
located in the same area as delineated by the baseline data.
12.3. The area not included in the Farmstead will be depicted under the category of Agricultural
Land. Agricultural Land may include nonfarm areas, such as woodlands, as well as cropland
or grazing land.
13. INFORMAL DISPUTE RESOLUTION
Grantor agrees to notify the Trust of any intended action that a reasonable person aught believe
would violate the terms of this Easement. Should a dispute arise concerning compliance with this
Easement, Grantor and the Trust will meet within 15 days to discuss the matter in dispute. By mutual
agreement, the Grantor and the Trust may agree to refer the matter in dispute to mediation or
arbitration under such rules as the parties may agree. If arbitration is pursued, the prevailing party will
be entitled to such relief as may be granted, to a reasonable sum for its costs and expenses related to
the arbitration, including fees and expenses of the arbitrator and attorneys. The Trust may, at its
discretion, forgo these infornnal dispute resolution alternatives if continuation of the use or activity in
dispute threatens the purpose of this Easement.
14. GRANTEES' REMEDIES
14.1. If Grantees deteninne that the Grantor is in violation of the terms of this Easement or that a
violation is threatened, Grantees shall give written notice to the Grantor of such violation and
request corrective action sufficient to cure the violation and to restore the Protected Property to
its prior condition.
14.2. Grantees may institute legal proceedings for injunctive relief, abatement, restoration, or
damages, including costs and attorneys' fees reasonably incurred in prosecuting the action, and
any other remedies available in law or equity if Grantor:
39
14.2.1. Fails to cure the violation within thirty (30) days after receipt of notice thereof from
Grantees;
14.2.2. Under circumstances where the violation cannot reasonably be cured within the thirty
(30) day period, fails to begin curing such violation within the thirty (30) day period;
or
14.2.3. Fails to continue diligently to cure such violation until finally cured
14.3. In the event Grantees or the United States take legal action to enforce the terms of this
Easement, the cost of restoring the Protected Property and Grantees' and the United States'
reasonable enforcement expenses, including attorneys' and consultants' fees, shall be borne by
the Grantor. In the event Grantees secure redress for an Easement violation without initiating
or completing judicial proceedings, the cost of such restoration and reasonable expenses shall
be borne by the Grantor. If Grantor ultimately prevails in any judicial proceedings initiated by
Grantees or the United States to enforce the terms of this Easement, each party shall bear its
own costs.
14.4. If Grantees, in their sole discretion, determine that circumstances require immediate action to
prevent or mitigate significant damage in violation of this Easement, Grantees may
immediately pursue their legal remedies without prior notice to Grantor as set forth in Section
14.1.
14.5. Grantees may not recover damages or require restoration for damage to the Protected Property
resulting from causes beyond Grantor's control, such as fire, flood, storm, or earth movement
that Grantor could not reasonably have anticipated or prevented.
15. RESPONSIBILITY FOR COST AND LIABILITIES
Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to the
ownership, operation, upkeep and maintenance of the Protected Property, including maintenance of
adequate liability insurance and payment of all taxes. Grantees assume no affirmative obligations for
the management, supervision or control of the Protected Property or any of the activities occurring on
the Protected Property. Grantor shall indemnify Grantees and the United States, and hold Grantees
and the United States harmless from all damages, costs (including, but not limited to, attorneys' fees
and other costs of defense incurred by Grantees), and other expenses of every kind arising from or
incident to any claim or action for damages including but not limited to, the release, use or deposit of
any hazardous material (as defined in Section 19.12. below) on the Protected Property, injury or loss
suffered or alleged to have been suffered on or with respect to the Protected Property.
16. EXTINGUISHMENT AND TRANSFER
16.1. The United States Right of Enforcement is a vested property right that cannot be condemned
by State or local government. If circumstances arise that render the purpose of this Easement
40
impossible to accomplish, the Easement can be extinguished only by judicial proceedings and
upon approval of the United States. In the event of such an extinguishment or the taking of the
Protected Property by the exercise of the power of eminent domain, Grantor shall pay to
Whatcom County and the United States in proportion to their contribution to the purchase
price. At the time this Deed was recorded the United States contribution was 50 percent and
Whatcom County's contribution was 50 percent. In the event this easement is terminated or
extinguished, NRCS shall collect the Commodity Credit Corporation's share of the
conservation easement based on the appraised fair market value of the conservation easement
at the time the easement is extinguished or terminated. The Commodity Credit Corporation's
share will be in proportion to its percentage of original investment.
16.2. Grantor agrees to:
16.2.1. Incorporate the terms of this Easement by reference in any deed, lease, executory
contract or other legal instrument by which it divest itself, or intends to divest itself, of
any permanent or temporary interest in the Protected Property.
16.2.2. Give written notice to the Grantees of the transfer of any interest in the Protected
Property no later than 45 days prior to the date of such transfer. Such notice shall
include the name, address, and telephone number of the prospective recipient. Failure
to provide such notice to the Grantees shall not limit the legal obligations imposed by
this Easement on any recipient of an interest in the Protected Property.
16.3. Whatcom Land Trust's rights and interest in this Easement are assignable only to an agency or
organization that is approved by the United States and Whatcom County and authorized to
hold conservation easements under RCW 64.04.130 or RCW 84.34.250, or otherwise qualified
at the tune of transfer under Section 170(h) of the Internal Revenue Code of 1986, as
amended. As a condition of such transfer, Grantees shall require that the transferee exercise its
rights under the assignment consistent with the purpose of this Easement. Grantees shall notify
Grantor and NRCS in writing in advance of such an assignment. The failure of Grantees to
give such notice shall not affect the validity of such assignment, nor shall it impair the validity
of this Easement or limit its enforceability.
17. AMENDMENT
If circumstances arise under which an amendment to or modification of this Easement would be
appropriate, the Parties are free to jointly amend this Easement provided that the Parties first obtain
the written consent of each Beneficiary to this Easement. Any such amendment shall be consistent
with the Purpose of this Easement, shall not affect the qualification of this Easement or the status of
Grantees under any applicable laws, shall not shorten the duration of this Easement and shall be
recorded in the official records of Whatcom County, Washington, and any other jurisdiction in which
such recording is required.
18. SUBORDINATION
41
Any mortgage or lien arising after the date of this conservation easement Deed shall be subordinated
to the terms of this easement, substantially in the form of the instrument attached hereto as Exhibit E.
19. GENERAL PROVISIONS
19.1. Effective Date. The Effective Date of this Easement shall be the date on which the Grantor
executed this Easement.
19.2. Notices. Any notice under this Agricultural Conservation Easement Deed must be in writing
and be personally delivered, delivered by recognized overnight courier service, given by mail
or via facsimile. E-mail transmission of notice shall not be effective. All notices must be
addressed to the parties at the following addresses, or at such other addresses as the parties
may from time to time direct in writing:
Grantor:
Grantee, Trust: Whatcom Land Trust
PO Box 6131
Bellingham, WA 98227
Grantee, County: Whatcom County PDS
Attn: PDR Program Administrator
5280 Northwest Drive
Bellingham, WA 98226
Third Party Grantee, NRCS: USDA-NRCS
Attn: Easement Programs
11707 E. Sprague Ave, Suite 301
Spokane Valley, WA 99206
Any notice will be deemed to have been given, when personally delivered, and if delivered by
courier service, one business day after deposit with the courier service, and if mailed, two
business days after deposit in the U.S. mail, and if delivered by facsimile, the same day as
verified.
19.3. Controlling Law. The interpretation or performance of this Easement shall be governed by the
laws of the State of Washington. Any legal proceeding regarding this Easement shall be
initiated in Whatcom County Superior Court.
19.4. Liberal Construction. Any general rule of construction to the contrary notwithstanding, this
Easement shall be liberally construed in favor of the grant to affect the purpose of this
Easement and the policy and purpose of RCW 64.04.130 and Chapter 84.34 RCW and
Whatcom County Ordinance 2002-054. If any provision in this instrument is found to be
42
ambiguous, an interpretation consistent with the purpose of this Easement that would render
that provision valid shall be favored over an interpretation that would render it invalid.
19.5. Severability. If any provision of this Easement, or its application to any person or
circumstance, is found to be invalid, the remainder of the Easement, or its application of such
provision to persons or circumstances other than those to which it is found to be invalid, as the
case may be, shall not be affected.
19.6. Entire Agreement. This instrument sets forth the entire agreement of the parties with respect to
the Protected Property and supersedes all prior discussions, negotiations, understandings, or
agreements relating to the Property, all of which are merged into this Easement.
19.7. No Forfeiture. Nothing contained in this Easement will result in a forfeiture or revision of
Grantor's title in any respect.
19.8. Warranty of Good Title. Grantor warrants that Grantor has good title to the Protected Property;
that the Grantor has the right to convey this conservation easement; and that the Protected
Property is free and clear of any encumbrances other than those listed below.
19.9. Grantor -Grantees. The terms "Grantors" and "Grantees," wherever used in this Easement, and
any pronouns used in their place, shall be held to mean and include respectively the above
named Grantor, its, successors, and assigns, and the above -named Grantees, their successors
and assigns.
19.10. Successors and Assigns. The covenants, terms, conditions, and restrictions of this Easement
shall be binding upon, and inure to the benefit of, the parties to this Easement and their
respective, successors, and assigns, and shall continue as a servitude running in perpetuity
with the Protected Property.
19.11. Federal Enforcement. In the event that the Grantees fail to enforce the terns of this Easement
as determined in the sole discretion of the Secretary of the United States Department of
Agriculture ("Secretary"), the Secretary, his or her successors and assigns shall have the right
to enforce the terms of the Easement through any and all authorities available under Federal or
State law. In the event that Grantees attempt to terminate, transfer or otherwise divest
themselves of rights, title or interest in the Easement or extinguish the Easement without prior
consent of the Secretary, all right, title, or interest in this Easement shall become vested in the
United States of America. The United States shall be entitled to recover any and all
administrative and legal costs from the County Grantee, including attorney fees or expenses,
associated with any enforcement or remedial action as it relates to the ACEP.
19.12. General Indemnification. Grantor shall indemnify and hold harmless Grantees and the United
States, their employees, agents and assigns for any and all liabilities, claims, demands, losses,
expenses, damages, fines, fees, penalties, suits, proceedings, actions and costs of actions,
sanctions asserted by or on behalf of any person or governmental authority, and other
liabilities (whether legal or equitable in nature and including, without limitation, court costs,
and reasonable attorney's fees and attorney's fees on appeal) to which Grantees may be
subject or incur relating to the Protected Property, which may arise from, but is not limited to,
43
Grantor's negligent acts or omissions or Grantor's breach of any representation, warranty,
covenant, agreements contained in this Conservation Easement Deed, or violations of any
Federal, State, or local laws, including all Environmental Laws.
19.13. Environmental Warranty. Grantor warrants that it is in compliance with, and shall remain in
compliance with, all applicable Environmental Laws. Grantor warrants that there are no
notices by any governmental authority of any violation or alleged violation of, non-compliance
or alleged non-compliance with or any liability under any Environmental Law relating to the
operations or conditions of the Protected Property. Grantor further warrants that it has no
actual knowledge of a release or threatened release of Hazardous Materials, as such substances
and wastes are defined by applicable federal and state law.
19.13.1. Moreover, Grantor hereby promises to hold harmless and indemnify the Grantees
against all litigation, claims, demands, penalties and damages, including reasonable
attorneys' fees, arising from or connected with the release or threatened release of
any Hazardous Materials on, at, beneath or from the Protected Property, or arising
from or connected with a violation of any Environmental Laws by Grantor or any
other prior owner of the Protected Property. Grantor's indemnification obligation
shall not be affected by any authorizations provided by the Trust, the County, or the
United States to Grantor with respect to the Protected Property or any restoration
activities carried out by the Trust or the County at the Protected Property; provided,
however, that Grantee shall be responsible for any Hazardous Materials contributed
after this date to the Protected Property by Trust or the County.
19.13.2. "Environmental Law" or• "Environmental Laws" means any and all Federal, state,
local or municipal laws, rules, orders, regulations, statutes, ordinances, codes,
guidelines, policies or requirements of any governmental authority regulating or
imposing standards of liability or standards of conduct (including common law)
concerning air, water, solid waste, hazardous materials, worker and community right -
to -know, hazard communication, noise, radioactive material, resource protection,
subdivision, inland wetlands and watercourses, health protection and similar
environmental health, safety, building and land use as may now or at any time
hereafter be in effect.
19.13.3. "Hazardous Materials" means any petroleum, petroleum products, fuel oil, waste oils,
explosives, reactive materials, ignitable materials, corrosive materials, hazardous
chemicals, hazardous wastes, hazardous substances, extremely hazardous substances,
toxic substances, toxic chemicals, radioactive materials, infectious materials and any
other element, compound, mixture, solution or substance which may pose a present
or potential hazard to human health or the environment.
19.14. Recordation. Grantees shall record this instrument in a timely fashion in the official records of
Whatcom County, Washington, and in any other appropriate jurisdictions, and may re-record it
at any time as may be required to preserve its rights in this Easement.
19.15. No Merger. In the event that Grantees acquire all or a portion of the fee title to the Protected
Property, it is the intent of the Parties that no merger of title shall take place that would merge
44
the restrictions of this Easement with fee title to the Protected Property and thereby eliminate
them, and that the restrictions on the use of the Protected Property, as embodied in the
Easement, shall, in the event that all or a portion of title become vested in Grantees, become
and remain permanent and perpetual restrictions on the use of the Protected Property. Grantees
covenant to do what is required to prevent merger of title, including, if necessary, assignment
of the Easement to an appropriate third party.
19.15.1. In the event that either Grantee takes legal title to Grantor's interest in the Protected
Property, that Grantee shall commit the monitoring and enforcement of the
Conservation Easement to another qualified organization within the meaning of
section 170 (h)(3) of the United States Internal Revenue Code (1986) as amended,
which organization has among its purposes the conservation and preservation of land
and water areas.
20. RCPP MINIMUM DEED TERMS
This Conservation Easement is acquired with funds provided, in part, under the Regional Conservation
Partnership Program (RCPP) (16 U.S.C. Section 3871 et seq. and 7 CFR part 1464). The Exhibit F
is attached hereto and incorporated herein by reference and will run with the land in perpetuity. As
required by the RCPP, and as a condition of receiving RCPP funds, all present and future use of the
Protected Property identified in Exhibit A (legal description) is and will remain subject to the terms
and conditions described forthwith in this Addendum entitled RCPP Minimum Deed Terms in Exhibit
F that is appended to and made a part of this easement deed. The rights of the United States acquired
under this Conservation Easement shall be unaffected by any subsequent amendments or repeal of the
RCPP.
21. SCHEDULE OF EXHIBITS
21.1. Exhibit A. Legal Description
21.2. Exhibit B. Site Map
21.3. Exhibit C. Ordinance
21.4. Exhibit D. Baseline Documentation
21.5. Exhibit E. Subordination Agreement Example
21.6. Exhibit F. RCPP Minimum Deed Terms
TO HAVE AND TO HOLD unto Grantees and the State of Washington, and their successors, and assigns
forever.
45
REMAINDER OF PAGE IS INTENTIONALLY BLANK; SIGNATURE PAGES FOLLOW
46
IN WITNESS WHEREOF, the undersigned Grantor has executed this instrument this day of
20
Grantor
STATE OF WASHINGTON )
) ss.
COUNTY OF WHATCOM )
I certify that I know or have satisfactory evidence that , is
the person who appeared before me, and said person acknowledged that they signed this instrument, on oath
stated that they were authorized to execute the instrument and acknowledged it as the
of to be the free and voluntary
act of such party for the uses and purposes mentioned in the instrument.
Dated:
(Use this space for notanaI stamp/seal)
Notary Public
Print Name
My commission expires
47
WHATCOM COUNTY does hereby accept the above Agricultural Conservation Easement Deed.
Dated:
Grantee
By
Satpal Sidhu, County Executive
Approved as to Legal Form: By
Senior Civil Deputy Prosecuting Attny
STATE OF WASHINGTON )
) ss.
COUNTY OF WHATCOM )
I certify that I know or have satisfactory evidence that is the
person who appeared before me, and said person acknowledged that they signed this instrument, on oath stated
that they were authorized to execute the instrument and acknowledged it as the
of to be the free and
voluntary act of such party for the uses and purposes mentioned in the instrument.
Dated:
Notary Public
Print Name
My conunission expires
(Use this space for notarial stanm/seal)
The WHATCOM LAND "TRUST, a Washington nonprofit corporation, does hereby accept the above
Agricultural Conservation Easement Deed.
Dated:
By
Its
STATE OF WASHINGTON )
) ss.
COUNTY OF WHATCOM )
I certify that I know or have satisfactory evidence that _ is the
person who appeared before me, and said person acknowledged that they signed this instrument, on oath stated
that they were authorized to execute the instrument and acknowledged it as the
of to be the free and
voluntary act of such party for the uses and purposes mentioned in the instrument.
Dated:
Notary Public
Print Name
My commission expires
(Use this space for notarial stamp/seal)
THE UNITED STATES OF AMERICA, BY AND THROUGH THE NATURAL RESOURCES
CONSERVATION SERVICE, Third Party Beneficiary, does hereby accept the above Grant Deed of
Agricultural Conservation Easement.
Dated:
By
49
Its
STATE OF WASHINGTON )
ss.
COUNTY OF THURSTON )
I certify that I know or have satisfactory evidence that is the
person who appeared before me, and said person acknowledged that they signed this instrument, on oath stated
that they were authorized to execute the instrument and acknowledged it as the
of _ to be the free and
voluntary act of such party for the uses and purposes mentioned in the instrument.
Dated:
this space for notarial stamp/seal)
Notary Public
Print Name
My commission expires
50
I EXHIBIT A
Z Legal Description
6 APN/ParcelID:
w
Exhibit B
Site Map
w
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3
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5
6
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12
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16
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EXHIBIT C
Ordinance
SPONSOREDBY: Planning
PROPOSEDBY:
INTRODUCTION DATE. 8113102
ORDINANCE NO. 2002-051-
WHEREAS, WhatCorn County government recognizes agriculture as a major contributor
to the local economy and a high quality of life for Whatcom County citizens; and
WHEREAS, The Growth Management Act and the County Comprehensive Plan support
the retention of agricultural lands of long term commercial significance and encourage
the use of innovative techniques to do so-, and
WHEREAS, Ordinance #92-002 enacted a property tax levy is as the Conservation
Futures Tax as authorized by RCW 84,34,230 to provide a funding source to assist in
acquiring open space, wetlands, farm and agricultural land, and timber land; and
WHEREAS, Resolution # 2001-049 authorized the creation of a Purchase of
Development Rights Steering Committee with the charge to develop a PDR program for
Whatcom County by April 30, 2002 and authorized the County Executive to expend up to
$30,000 for outside contract assistance in preparing the PDR program; and
WHEREAS, Resolution #2001-049 also committed the Council to expend a fair and
significant share of the Conservation Futures Funds for acquiring interest in agricultural
lands, and
WHEREAS, The Purchase of Development Rights Steering Committee met regularly
from October 2001 through April 2002 and forwarded a recommendation in May of 2002,
and
WHEREAS, Council reviewed the Purchase of Development recommendation from the
PDR Steering Committee and requested PISS staff to develop a Purchase of
Development Rights Ordinance,, and
WHEREAS, Council held a public hearing on September 10, 2002 to take public
comment on the Agricultural Purchase of Development Rights program.
NOW, THEREFORE, BE IT ORDAINED by the Whatcorn County Council that
1 The Agricultural Purchase of Development Rights program is adopted as attached in
Exhibit 1
C-1
1
2
3
4
5
6
7
8
9
10
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13
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16
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2. Adjudication of invalidity of any of the sections, clauses, or provisions of this
ordinance shall not affect or impair the validity of the ordinance as a whole or any
part thereof ether than the part so declared to be invalid.
ADOPTED this 10 day of 2002
A TTEST.
:Dana 13,c ry-Dav s,
Clerk of the Council
t
r r4elso unci Chair -
APPROVED as to form { Approved Denied
�q
A ` �
Garen N brakes, Civil Deputy rJP osecutor _ �Kren en, Executive
C-2
Cate:
EXHIBIT D
Baseline Documentation
The Baseline Documentation for the Agricultural Conservation Basement is kept by the
Whatcom Land Trust at 412 N Commercial, Bellingham WA 98225. The remainder of this page is
intentionally blank.
No
EXHIBIT E
Subordination Agreement Example
When recorded return to:
Grantor:
Grantee:
Legal Description
Abbreviated form:
Additional legal at Exhibit B.
Assessor's Tax Parcel Number:
Reference number(s) of related/assigned/released documents:
Reference(s) to document(s) appears on page(s)
SUBORDINATION AGREEMENT
NOTICE: "THIS SUBORDINATION AGREEMENT RESULTS IN YOUR SECURITY INTEREST IN
THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF
SOME OTHER OR LATER INSTRUMENT.
The undersigned subordinator agrees as follows:
("Subordinator") is the owner and holder of a mortgage dated
_ which was recorded under Auditor's File No. records of
County;
2. ("Easement Holder") is the holder of a conservation easement dated
20_, executed by [("Oivner') or ("Owners')] (as hereinafter defined) which
will be recorded concurrently with this Subordination Agreement;
E-1
3. [husband and wife,] [("Owner') or ("Ouners )] [is the owner or
are the owners] of all the real property described in the conservation easement identified above in
Paragraph 2.
4. In consideration of benefits to Subordinator from [("Owner') or ("Owners')], receipt and
sufficiency of which is hereby acknowledged, the Subordinator does hereby unconditionally
subordinate the lien of the mortgage identified above in Paragraph 1 to the conservation easement
identified above in Paragraph 2.
5. This Agreement shall be the whole and only agreement between the parties hereto with regard to
the subordination of the lien or charge of the mortgage first above mentioned to the conservation
easement in favor of Easement Holder above referred to and shall supersede and cancel any prior
agreements as to such, or any subordination including, but not limited to, those provisions, if any,
contained in the mortgage first above mentioned, which provided for the subordination of the lien
or charge thereof to a mortgage to be thereafter executed.
6. The heirs, administrators, assigns and successors in interest of the Subordinator shall be bound by
this agreement. Where the word mortgage appears herein it shall also be considered as deed of
trust, and gender and number of pronouns considered to conform to undersigned.
Executed this day of , 20
E-2
SUBORDINATOR
(Name) (Name)
STATE OF WASHINGTON )
ss.
COUNTY OF )
SUBORDINATOR
I certify that I know or have satisfactory evidence that
is the person who appeared before me, and said person acknowledged that they
oath stated that they were authorized to execute the instrument and
of
signed this instrument, on
acknowledged it as the
to be the free and
voluntary act of such party for the uses and purposes mentioned in the instrument.
Dated:
Notary Public
Print Name
My commission expires
(Use this space for notarial stamp/seal)
E-3
EXHIBIT F
RCPP Minimum Deed Terms
The Regional Conservation Partnership Program (16 U.S.C. Section 3871 et seq.), facilitated and provided
funding for the purchase of a Conservation Easement ("Conservation Easement") on real property described in
Exhibit A, hereafter referred to as the "Protected Property," to further the restoration, protection, enhancement,
management, maintenance, and monitoring of agricultural values on the Protected Property (the "Conservation
Values").
The (collectively "Grantor"), the Whatcom Land Trust ("Trust"), and Whatcom
County, Washington ("County") ("collectively, Grantees"), and the United States of America (the "United
States") and its assigns, acting by and through the United States Department of Agriculture ("USDA") Natural
Resources Conservation Service ('`NRCS") on behalf of the Commodity Credit Corporation ("CCC") (jointly
referred to as the "Parties") acknowledge that the Conservation Easement is acquired by the Grantee for the
purpose of the restoration, protection, enhancement, management, maintenance, and monitoring of the
Conservation Values (the "purposes of the Conservation Easement"). Decision making on behalf of NRCS is
delegated to the Chief of NRCS or authorized designee (hereafter referred to as "Chief of NRCS"). Baseline
conditions of the Protected Property are set forth in a Baseline Documentation Report, a copy of which is
maintained in the files of the Trust.
In order to ensure compliance with the Regional Conservation Partnership Program, 16 U.S.C. Section 3871 et.
seq. and 7 CFR part 1464, the following rule of interpretation will govern any and all inconsistencies between
this Exhibit and other provisions of the Conservation Easement. Notwithstanding any other provision of the
Conservation Easement, the Parties agree that all present and future use of the Protected Property is and will
remain subject to all of the following terms and conditions identified in Sections I and II. If the terms and
conditions in Sections I and lI are inconsistent with terms and conditions in other sections of the Conservation
Easement, Sections I and 11 will control; however, if other sections of the Conservation Easement have terms
and conditions that are consistent with, but more restrictive to the rights of the Grantor than the terms and
conditions in Section 1, Paragraphs 1, 2, and 4, those more restrictive terms and conditions will control. If other
sections of the Conservation Easement are more restrictive to the rights of the Grantor than Section 1, Paragraph
3 and Section II, then Section 1, Paragraph 3 and Section II will control.
SECTION I - MINIMUM CONSERVATION DEED RESTRICTIONS
Even if the Protected Property consists of more than one parcel for real estate tax or any other purpose or if it was
acquired previously as separate parcels, it will be considered one parcel for purposes of the Conservation
Easement, and the restrictions and covenants of this Conservation Easement will apply to the Protected Property
as a whole.
The terms and conditions of the Conservation Easement run with the land and are binding upon the Grantor and
Grantee and their respective heirs, successors, agents, assigns, lessees, and any other person claiming under them
must comply with all terms and conditions of this easement, including the following:
F-1
1. Limitation on Impervious Surfaces. hnpervious surfaces will not exceed 2 percent of the Protected
Property, excluding NRCS-approved conservation practices. Impervious surfaces are defined as material that
does not allow water to percolate into the soil on the Protected Property, including, but not limited to, buildings
with or without flooring, paved areas, and any other surfaces that are covered by asphalt, concrete, or roofs.
This limitation does not include public roads or other roads owned and controlled by parties with rights superior
to those rights conveyed to Grantee by this Conservation Easement.
2. Limitations on Uses. Any uses or activities that are inconsistent with the purposes of the Conservation
Easement are prohibited. The following activities are inconsistent with the purposes of the Conservation
Easement and are specifically prohibited, subject to the qualifications stated below:
(A) Subdivision — Separate conveyance of a portion of the Protected Property or division or subdivision
of the Protected Property is prohibited.
(B) Industrial or Co7mvercial Uses — Industrial or commercial activities on the Protected Property are
prohibited except for the following:
(i) Uses consistent with the purposes of the Conservation Easement;
(ii) The sale of excess power generated in the operation of renewable energy structures and
associated equipment or other energy structures that Grantee approves in writing as being
consistent with the purposes of the Conservation Easement;
(iii) Temporary or seasonal outdoor activities or events that do not harm the Conservation Values;
(iv) Commercial enterprises related to agriculture or forestry including but not limited to
agritourism, processing, packaging, and marketing of farm or forest products, farm machinery
repair, and farm wineries.; and
(v) Small-scale commercial enterprises compatible with agriculture or forestry, including but not
limited to cafes, shops, and studios for arts or crafts.
(C) Construction on the Protected Property — Except as otherwise permitted in this Section I, Paragraph
2(C), all structures and improvements must be located within the Building Envelope(s), containing
approximately total acres and described or shown in Exhibit B, which is appended to and made a
part of this Conservation Easement.
The identified boundaries and locations of the approved Building Envelope(s) may be adjusted only with
prior written approval from the Grantee and the Chief of NRCS. The adjusted Building Envelope(s) may
not be larger than the approved Building Envelope(s) and must provide equal or greater protection of the
Conservation Values. Following receipt of written approval to adjust identified Building Envelope(s), the
Grantor and Grantee shall amend this Conservation Easement to add an exhibit that describes the
subsequently approved boundaries and locations of the Building Envelope(s).
F-2
Agricultural structures and utilities to serve approved buildings or structures, including on -farm energy
structures allowed under Section I, Paragraph 2(B)(ii) and in this Section I, Paragraph 2(C), that neither
individually nor collectively have an adverse impact on the Conservation Values, may be located outside
of the Building Envelope(s) with prior written approval of the Grantee.
New roads may be constructed if they are approved in advance by Grantee, within impervious surface
limits, and necessary to carry out the agricultural operations or other allowed uses on the Protected
Property.
Maintenance of existing roads documented on the Baseline Documentation Report is allowed; however,
existing roads may not be widened or improved unless widening and improving is within impervious
surface limits, approved in advance by Grantee, and necessary to carry out the agricultural operations or
other allowed uses on the Protected Property.
Fences may be maintained and replaced, and new fences installed if they are necessary for agricultural
operations or other allowed uses on the Protected Property or to mark boundaries of the Protected Property.
Maintenance, replacement, and installation of fences must be conducted in a manner consistent with the
purposes of the Conservation Easement.
(D) Granting ofEasennents for Utilities and Roads —The granting or modification of easements for utilities
and roads is prohibited when the utility or road will adversely impact the Conservation Values as
determined by the Grantee in consultation with the Chief of NRCS.
(E) Su face Alteration — Grading, blasting, filling, sod farming, earth removal, or any other activity that
will disturb the soil surface or materially alter the topography, surface or subsurface water systems, or
wetlands of the Protected Property is prohibited, except as follows:
(i) Dam construction pursuant to a plan approved by the Grantee to create ponds for agricultural
use, fire protection, or wildlife enhancement, including enhancement through wetland restoration,
enhancement or creation;
(ii) Erosion and sediment control pursuant to a plan approved by the Grantee;
(iii) Soil disturbance activities required in the maintenance or construction of approved buildings,
structures, roads, and utilities provided that the required alteration has been approved in writing
by Grantee as being consistent with the purposes of the Conservation Easement; and
(iv) Agricultural activities and related conservation activities conducted in accordance with
this Conservation Easement and the RCPP Easement Plan as described in Section I, paragraph 4.
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(F) Sup face and Subsu face Mineral Exploration and Extraction —
Mining or extraction of soil, sand, gravel, oil, natural gas, fuel, coal, or any other mineral
substance owned by Grantor as of the date of this Conservation Easement or later
acquired by Grantor, using any surface mining, subsurface mining, or dredging
method, from the Protected Property is prohibited except as otherwise provided in this
Paragraph (F).
If a third party owns or leases the oil, natural gas, or any other mineral rights associated
with the Protected Property prior to the time this Conservation Easement is executed,
and their interests have not been subordinated to this Conservation Easement, the
Grantor must require, to the greatest extent possible, that any oil, natural gas, and
mineral exploration and extraction conducted by such third party is conducted in
accordance with this Paragraph (F). Any mineral leases or other conveyances of
minerals entered into or renewed after the date of this Conservation Easement are
subordinate to the terms of this Conservation Easement and must incorporate by
reference this Conservation Easement.
Limited mining activities for materials (e.g., sand, gravel, or shale) used to facilitate
the agricultural operations on the Protected Property are allowed where the extraction
of such materials is limited, localized, and small with a defined area and acreage
approved prior to extraction by the Grantee, not to exceed two acres, and does not
harm the Conservation Values.
Subsurface mineral development on the Protected Property is allowed in accordance
with this ,Paragraph (F), if approved by Grantee and Chief of NRCS. Grantee and
Grantor must demonstrate prior to the initiation of mineral development activity that
such subsurface mineral development shall
(i) Be conducted in accordance with applicable State law;
(ii) Have a limited and localized impact;
(iii) Not harm the Conservation Values;
(iv) Not materially alter or affect the existing topography, as determined by
Grantee and the Chief of NRCS;
(v) Comply with a subsurface mineral development plan that includes a
plan for the remediation of impacts to the Conservation Values, which
includes reclaiming and restoring all areas of the Protected Property that
are impacted by the subsurface mineral development and such plan is
approved by Grantee and the Chief of NRCS prior to the initiation of
mineral development activity;
(vi) Not be accomplished by any surface -mining method;
(vii) Be within the impervious surface limits described ill Section 1, Paragraph
1; and
(viii) Use practices and technologies that minimize the duration and intensity
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of impacts to the Conservation Values.
All areas of the Protected Property that are impacted by subsurface mineral
development pursuant to this section must be reclaimed and restored within a
reasonable time, as determined by the Grantee and Chief of NRCS, at cessation of
subsurface mineral development activities.
Impervious surfaces, as defined in Section I, Paragraph I, include any surface
disturbance or impervious surfaces associated with subsurface mineral development
allowed by this paragraph.
3. Allowed Uses. The provisions of this Conservation Easement and associated exhibits
will not be interpreted to restrict the types of agricultural operations that can function on the
Protected Property, so long as the agricultural operations are consistent with the long-term
viability of the Protected Property and the purposes of the Conservation Easement. No uses
will be allowed that violate Federal laws, including Federal drug laws or that decrease the
Conservation Easement's protection for the Conservation Values. Allowed uses of the
Protected Property include the specific uses allowed in Section I, Paragraph (2)(B) (i)-(v) and
the following activities, subject to the qualifications stated below:
(A) Agricultural Production — The production, processing, and marketing of
agricultural crops, livestock, and forest products is allowed provided it is conducted in a
manner consistent with the terms of the Conservation Easement and the RCPP
Easement Plan described in Section I, Paragraph 4.
(B) On -Farm Energy Production — Renewable energy production is allowed for the
purpose of generating energy for the agricultural and residential needs of the Protected
Property. Renewable energy sources must be built and maintained within impervious
surface limits and consistent with the purposes of the Conservation Easement.
4. RCPP Easement Plan. The Grantee shall prepare an RCPP Easement Plan in
consultation with the Grantor and, as needed, the Chief of NRCS. The Grantee agrees to
update the RCPP Easement Plan, in consultation with the Grantor and as needed, the Chief of
NRCS, in the event the uses or ownership of the Protected Property change. A copy of the
current RCPP Easement Plan is kept on file with the Grantee.
The RCPP Easement Plan shall describe the farm or ranch management system,
describe the natural resource concerns on the Protected Property, describe the
conservation measures and practices that may be implemented to address the identified
resource concerns, promote the long-term viability of the land to meet the purposes of
the Conservation Easement, and identify, as applicable, permissible and prohibited
activities and any associated restoration plans.
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SECTION II — PROTECTION OF THE UNITED STATES' INTERESTS AND
EASEMENT ENFORCEMENT
1. General Disclaimer and Grantor Warranty. The United States, its employees,
agents, and assigns disclaim and will not be held responsible for Grantee's or Grantor's
negligent acts or omissions or Grantee's or Grantor's breach of any representation, warranty,
covenant, or agreements contained in this Conservation Easement Deed, or violations of any
Federal, State, or local laws, including all Environmental Laws (defined below) including,
without limitation, those that give rise to liabilities, claims, demands, losses, expenses,
damages, fines, fees, penalties, suits, proceedings, actions, costs of actions, or sanctions
asserted by or on behalf of any person or governmental authority, and other liabilities (whether
legal or equitable in nature and including, without limitation, court costs, and reasonable
attorneys' fees and attorneys' fees on appeal) to which the United States may be subject or
incur relating to the Protected Property.
Grantor must indemnify and hold harmless the United States, its employees, agents, and
assigns for any and all liabilities, claims, demands, losses, expenses, damages, fines, fees,
penalties, suits, proceedings, actions and costs of actions, sanctions asserted by or on behalf of
any person or governmental authority, and other liabilities (whether legal or equitable in nature
and including, without limitation, court costs, and reasonable attorneys' fees and attorneys'
fees on appeal) to which United States may be subject or incur relating to the Protected
Property, which may arise from, but are not limited to, Grantor's negligent acts, omissions, or
breach of any representation, warranty, covenant, agreements contained in this Conservation
Easement Deed or violations of any Federal, State, or local laws, including all Environmental
Laws.
2. Environmental Warranty. Grantor warrants that it is in compliance with, and will
remain in compliance with, all applicable Environmental Laws. Grantor warrants that there are
no notices by any governmental authority of any violation or alleged violation of,
noncompliance or alleged noncompliance with, or any liability under, any Environmental Law
relating to the operations or conditions of the Protected Property. Grantor further warrants that
it has no actual knowledge of an undisclosed release or threatened release of Hazardous
Materials (defined below), as such substances and wastes are defined by applicable Federal
and State law.
Furthermore, Grantor warrants the information disclosed to Grantee and United States
regarding any past violations or noncompliance with Environmental Laws and associated
remedial actions, or any past releases of Hazardous Materials and any associated remedial
actions is complete and accurate.
Moreover, Grantor hereby promises to hold harmless and indemnify Grantee and the United
States against all litigation, claims, demands, penalties and damages, including reasonable
attorneys' fees, arising from or connected with the release or threatened release of any
hazardous materials on, at, beneath or from the Protected Property, or arising from or
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connected with a violation of any Environmental Laws by Grantor or any other prior
owner of the Protected Property. Grantor's indemnification obligation will not be affected by
any authorizations provided by Grantee or the United States to Grantor with respect to the
Protected Property or any restoration activities carried out by Grantee on the Protected
Property; provided, however, that Grantee will be responsible for any Hazardous Materials
contributed after this date to the Protected Property by Grantee.
"Environmental Law" or "Environmental Laws" means any and all Federal, State, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes, guidelines, policies, or
requirements of any governmental authority regulating or imposing standards of liability or
standards of conduct (including common law) concerning air, water, solid waste, hazardous
materials, worker and community right -to -know, hazard communication, noise, radioactive
material, resource protection, subdivision, inland wetlands and watercourses, health
protection, and similar environmental health, safety, building, and land use as may now or at
any time hereafter be in effect.
"Hazardous Materials" means any petroleum, petroleum products, fuel oil, waste oils,
explosives, reactive materials, ignitable materials, corrosive materials, hazardous chemicals,
hazardous wastes, hazardous substances, extremely hazardous substances, toxic substances,
toxic chemicals, radioactive materials, infectious materials, and any other element, compound,
mixture, solution, or substance that may pose a present or potential hazard to human health or
the environment.
3. Extinguishment, Termination, and Condemnation. The interests and rights under
this Conservation Easement may only be extinguished or terminated with written approval of
the Grantee and the United States. Due to the Federal interest in this Conservation Easement,
any proposed extinguishment, termination, or condemnation action that may affect the United
States' interest in the Protected Property must be reviewed and approved by the United States.
With respect to a proposed extinguishment, termination, or condemnation action, the Grantee
and the United States stipulate that the fair market value of the Conservation Easement is
percent, hereinafter the "Proportionate Share," of the fair market value of the land
unencumbered by this Conservation Easement. The Proportionate Share will remain constant
over time.
If this Conservation Easement is extinguished, terminated, or condemned, in whole or in part,
then the Grantor must reimburse Grantee and the United States an amount equal to the
Proportionate Share of the fair market value of the land unencumbered by this Conservation
Easement. The fair market value will be determined at the time all or a part of this
Conservation Easement is terminated, extinguished, or condemned by an appraisal that meets
the Uniform Standards of Professional Appraisal Practice (USPAP) or Uniform Acquisition
Standards or Federal Land Acquisition (UASFLA). The appraisal must be completed by a
certified general appraiser and be approved by the Grantee and the United States.
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The allocation of the Proportionate Share between the Grantee and the United States will be as
follows: (a) to the Grantee or its designee, 50 percent of the Proportionate Share; and (b) to the
United States 50 percent of the Proportionate Share. Until such time as the Grantee and the
United States receive the Proportionate Share from the Grantor or the Grantor's successor or
assign, the Grantee and the United States each have a lien against the Protected Property for
the amount of the Proportionate Share due each of them. If proceeds from termination,
extinguishment, or condemnation are paid directly to Grantee, the Grantee must reimburse the
United States for the amount of the Proportionate Share due to the United States.
4. Amendment. This Conservation Easement may be amended only if, in the sole and
exclusive judgment of the Grantee and United States, by and through the Chief of NRCS, such
amendment is consistent with the purposes of the Conservation Easement and complies with
all applicable laws, regulations, and program policy. The Grantee must provide timely written
notice to the Chief of NRCS of any proposed amendments. Prior to the signing and recordation
of the amended Conservation Easement, such amendments must be mutually agreed upon by
the Grantee, Grantor, and United States, by and through the Chief of NRCS. Any purported
amendment that is recorded without the prior approval of the United States is null and void.
5. United States Right of Enforcement. In consideration of the RCPP funds received for
the acquisition of this Conservation Easement, the United States is also granted this right of
enforcement that it may exercise only if the terms of the Conservation Easement are not
enforced by the holder of the Conservation Easement. The Secreta►y of the United States
Department of Agriculture (the Secretary) or the Secretary's assigns, on behalf of the United
States, may exercise this right of enforcement under any authority available under State or
Federal law if the Grantee, or its successors or assigns, fails to enforce any of the terms of this
Conservation Easement, as determined in the sole discretion of the Secretary.
In the event the United States exercises this right of enforcement, it is entitled to recover any and
all administrative and legal costs associated with any enforcement or remedial action related to
the enforcement of this Easement from the Grantor, including, but not limited to, attorney's
fees and expenses related to Grantor's violations. In the event the United States exercises this
right of enforcement, it is entitled to recover any and all administrative and legal costs
associated with any enforcement of this Easement from the Grantee, including, but not limited
to, attorney's fees and expenses related to Grantee's violations or failure to enforce the
easement against the Grantor up to the amount of the United States contribution to the
purchase of the Conservation Easement.
The Grantee will annually monitor compliance and provide the United States with an annual
monitoring report that documents that the Grantee and Grantor are in compliance with the
Conservation Easement. If the annual monitoring report is insufficient or is not provided
annually, or if the United States has a reasonable and articulable belief of an unaddressed
violation, as determined by the Secretary, the United States may exercise its right of
inspection. For purposes of inspection and enforcement of the Conservation Easement, the
United States will have reasonable access to the Protected Property. Prior to its inspection of
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the Protected Property, the United States shall provide advance notice to Grantee and Grantor
and provide Grantee and Grantor a reasonable opportunity to participate in the inspection.
In the event of an emergency, the United States may enter the Protected Property to prevent,
terminate, or mitigate a potential or unaddressed violation of this Conservation Easement and
will give notice to Grantee and Grantor at the earliest practicable time.
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